MZMOR v Minister for Immigration
[2005] FMCA 41
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZMOR v MINISTER FOR IMMIGRATION | [2005] FMCA 41 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – disputed findings of fact – no reviewable error found. |
Migration Act 1958 (Cth), ss.5(1) 36(2), 475A, 477, 478, 479
Migration Regulations 1994 (Cth), Schedule 2
Judiciary Act 1903 (Cth) ss.39B, 475A, 477, 478
Applicant A & Anor v Minister for Immigration & Ethnic Affairsand Anor (1997) 190 CLR 225
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300
Hui Zhong Xu v Minister for Immigration (1999) 95 FCR 425
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affiars v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543.
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Roads Corporation v Dacakis [1995] 2 VR 508
Yan v Minister for Immigration (1995) 38 ALD 549
| Applicant: | MZMOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 162 of 2003 |
| Delivered on: | 24 January 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 29 June 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant | Mr Broadfoot |
| Counsel for the Respondent: | Mr Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs of, and incidental to, the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 162 of 2003
| MZMOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 December 2002. The applicant, who is a citizen of Sri Lanka, arrived in Australia on 24 July 2000 under a false identity. She lodged an application for a protection (Class XA) visa on 24 August 2000 with the Minister's department. The application for a protection visa was refused by a delegate of the Minister on 30 October 2000.
On 20 November the applicant applied for review before the RRT. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The applicant's claim before the delegate and the RRT was that she feared persecution upon return to Sri Lanka “because of imputation of my family with involvement with the Liberation Tigers of Tamil Eelam ”.
An application was filed by the applicant on 9 February 2003 seeking judicial review of the decision of the Tribunal on 18 December 2002 to affirm the decision of the delegate of the Minister to refuse to grant a protection (Class XA) visa.
The history
The applicant is a citizen of Sri Lanka of Muslim background. She arrived in Australia on 24 July 2000 under a false identity on a visitor visa, and lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs on 24 August 2000.
The applicant claimed that she can not return to Sri Lanka as she fears persecution for reasons of the imputation that her family had an involvement with the Liberation Tigers of Tamil Eelam (‘LTTE’). The applicant claimed that her father had been kidnapped and detained on one occasion in February 1999, by persons who believed he had sold a van which was used by the LTTE. The applicant’s father was in the business of selling cars and it transpired that one of the cars sold by him had apparently been used by the LTTE. On or about 10 March 1999 the applicant’s father was travelling in the course of his work. He was assaulted and left for dead. He received medical assistance in time to save his life but his left hand was severed and he sustained injuries to his right hand. The applicant and her family saw her father in hospital very shortly after the assault and the applicant described that event as follows:-
It was a very terrible thing to see and I will never be able to forget it. Father was conscious, and crying; he told us that they tried to kill him. We could see how badly he had been mutilated. He did not say anything about who had done this to him and just referred to “them” [CB28]
The injuries sustained by the applicant’s father required him to stay in hospital for 3 months. The family relocated to be able to visit him very frequently. Following these incidents and the release of the applicant’s father from hospital, the applicant and her family moved to another village and remained in hiding. The applicant alleged that in September 1999 three men came to the then family home searching for the applicant’s father. The men told the applicant’s mother they would “get the father in the end”. Shortly thereafter the applicant’s mother began receiving threatening telephone calls. The family did not know who was harassing them, but suspected it was either government authorities or an anti-Muslim Sinhalese group. The father lodged a complaint with the police but they reputedly took no action. The family resolved to leave Sri Lanka, and the applicant was assisted to travel to Australia whilst the rest of the family tried to get to England.
A further consequence of the attacks on the applicant’s father was that the applicant and her family lost what was previously a comfortable and relatively privileged lifestyle and began moving between different locations owing to a fear for their safety. Furthermore, the applicant’s father was forced to abandon his business, his car selling business, and the family’s livelihood.
In October 1999 the applicant applied for a visa to come to Australia. She believes that the application was made in her own name. The application was rejected.
In May 2000 the applicant’s father arranged and paid for a false passport and visa to facilitate the applicant’s travel to Australia.
As indicated, the applicant travelled to Australia on 23 July 2000.
On 30 October 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Tribunal on 20 November 2000.
In the decision made by the Tribunal on 18 December 2002, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal 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 section 36(2) of the Migration Act 1958 (Cth) (“the Act”) for the purposes of a protection visa.
Specifically, the Tribunal found:
a)the attacks on the applicant’s father were not politically motivated;
b)the harm suffered by the applicant’s father was not for a Convention reason but was a result of crime;
c)the applicant’s fear of harm by reason of her connection to her family was not for a Convention reason;
d)the applicant was not a person “then nor now who is of negative interest to the authorities”
On 9 February 2003, the applicant lodged an application in person in this Court, being MZ 162 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth) and sections 475A, 477, 478 and 479 of the Migration Act 1958, for review of the Tribunal’s decision. The applicant by pro bono counsel filed an amended application and contentions of facts and law dated 19 September 2003, in which the applicant claimed, in summary, that:
a)The Tribunal misinterpreted and/or misunderstood the criterion that the applicant have a well-founded fear of persecution on a Convention ground;
b)the Tribunal failed to identify the applicable Convention ground and thereby failed to exercise its jurisdiction;
c)the Tribunal mistakenly considered the applicant’s Muslim identity as the reason for persecution;
d)the Tribunal should have found that the father had been persecuted due to being wrongly accused or suspected of involvement with LTTE, and that the applicant had a well-founded fear of harm as a consequence of being an immediate family member;
e)the Tribunal acted in the absence of evidence in regards to its findings relating to the attacks on the applicant’s father, which was unreasonable;
f)it is enough to establish persecution if the authorities can not or will not prevent the behaviour.
The respondent’s contentions of fact and law, which were filed on 9 October 2003, rebutted the applicant’s contentions, arguing that the Tribunal:
a)did not ask itself the wrong question by considering the applicant’s Muslim identity, but was seeking to address all possible Convention grounds;
b)considered in detail the applicant’s claim that she feared persecution by reason of her father’s suspected involvement with LTTE;
c)correctly found that the applicant had “shifted her ground” in relation to the identities of the persons who had attacked her father;
d)did not “act without evidence” in relation to its finding that the father was robbed by ordinary criminals, because it was up to the applicant to persuade the Tribunal that the attack had political motivations behind it, and she failed to do so. To the extent that the applicant contended that the Tribunal’s finding that the vicious attack on the applicant’s father was not politically motivated was so unreasonable that no reasonable person could have exercised the powers in that way, the respondent contended the finding was not unreasonable at all, was a decision open to the Tribunal on the evidence and that there was a live issue as to whether “unreasonableness” is a ground of judicial review or whether it could constitute jurisdictional error.
e)accepted that the applicant’s father was questioned and detained in February 1999 but did not accept that the vicious attack upon him in March 1999 was related in that it was executed by some of the people who interrogated him in March 1999 or was otherwise politically motivated. Accordingly, because the Tribunal was satisfied that the incidents were not components in a continuing persecution, it was not required to consider the willingness or ability of the Sri Lankan government to prevent the alleged persecution;
The applicant contends primarily that the decision of the Tribunal should not be allowed to stand because it was a determination made in an excess of jurisdiction. In particular, at the commencement of the hearing the applicant contended that the Tribunal asked itself the wrong question in that is assessed the applicant’s claim as though the applicant was seeking protection, as a Muslim, on the grounds of persecution for religious reasons whereas protection was in fact sought by the applicant on the basis that she had a well founded fear of being persecuted because of an imputed political belief based on her family’s alleged association with the LTTE.
In the latter part of the hearing, the applicant conceded that the Tribunal had accurately stated the applicant’s case in the following terms:-
She claimed that she feared persecution on return to Sri Lanka for reasons of the imputation that her family had an involvement with the LTTE [court book 61] -
However, the applicant contends that the Tribunal did not then proceed to address the applicant’s case as described above but, rather, analysed the applicant’s claim as a claim to persecution on the grounds of religion. In particular, that the RRT reached made its determination on the basis of undue emphasis on religious factors rather than on political factors.
The applicant also contended that the Tribunal’s finding (recited at page 71 of the court book) to the effect that the vicious physical attack on the applicant’s father on 9 March 1999 could not be said to be politically motivated was “manifestly unreasonable” within the meaning of authorities such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Chan v Minister for Immigration (1989) 169 CLR 379; Yan v Minister for Immigration (1995) 38 ALD 549; Hui Zhong Xu v Minister for Immigration (1999) 95 FCR 425. In this regard the applicant contends that the RRT should have found that the attack and robbery on the applicant’s father in Colombo was due to, and part of, the persecution of the applicant’s father and his immediate family on the ground that her father was a person wrongly suspected or accused of involvement in terrorist violence by Tamil separatists.
In the applicant’s statutory declaration made on 25 August 2000, and lodged with her application for a protection visa, she clearly stated (at paragraph 10) that very shortly after her father’s emergency hospitalisation in March 1999, her father had said that he had recognised 3 of the 4 perpetrators of the attack as men by whom he had been detained or questioned in February 1999.
At the hearing before the RRT on 17 December 2002 the applicant gave evidence about the identity of the 4 men who attached her father on 9 March 1999. The RRT’s decision records:-
a)The Tribunal asked her whether it appeared to be a case of theft accompanied by physical assault, that is, a crime rather than an act of persecution which came within the Convention bounds. The Applicant responded that the family never knew who was behind it but that it must have been more than criminal as the threats went on even after her father left hospital and returned to Mawanella.
b)She said that she thought all the incidents of 1999 were connected. She was asked what happened to the Muslim man to whom her father had sold the vehicle but she said she did not know. It was put to her that it was somewhat implausible that the authorities would take such actions against a person who was not even the first party to the alleged acquisition of the vehicle by the LTTE. She responded that she did not know who was behind any of the but that the family had been threatened, her father seriously harmed and that she feared for her own life. Her mother thought an extremist Sinhalese group which was anti-Muslim might be responsible.
c)There had been no more attacks since 1999. The Applicant repeated on a number of occasions that she did not know the motives for the attack on her father and the threats against the family. However she believed her life was in jeopardy and that was why she and her sister had fled from Sri Lanka to other countries.
Before reaching its decision, it is significant that the RRT recites the relevant criteria applicable to the grant of a protection visa. There was no issue before me of the accuracy of RRT’s recitation of the applicable law.
The law
Section 65 of the Act provides that, if the Minister is satisfied that the prescribed criteria and other specified matters have been satisfied, the visa is to be granted; if not the visa is to be refused.
A criteria for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended but the 1967 Protocol relation to the Status of Refugees; ss.5(1) and 36(2) of the Act and cl.866.221 of Schedule 2 to the Migration Regulations. The remaining criteria are set out in Part 866 of Schedule 2 to the Regulations.
Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them.
Article 1A(2) of the Convention defines a refugee as any person who:
owing to 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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The High Court considered this definition in a number of cases, notably in Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 190 CLR 225, MIEA v Guo & Anor (1997) 191 CLR 559, and Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553.
In Guo’s case, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. However, not every threat of harm or interference with a person’s rights for a Convention reason constitutes ‘being persecuted’. Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan at 388). In the same case McHugh J said that the notion of persecution involves selective harassment and that in appropriate cases it may include a single act of oppression and measure ‘in disregard’ of human dignity. In Applicant A’s case, his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. Persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.
In amendments to the Migration Act (2001), the matter of persecution was further defined. The Refugees Convention as amended by the Protocol does not apply unless
(a)the 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.
The amendments include descriptors of what may constitute serious harm. While the list is not exclusive of sorts of harm, the following circumstances are instanced:
(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 exist.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. However, the persecution feared need not be solely attributable to a Convention reason. It is enough if race, religion, nationality, membership of a particular social group or political opinion, is but one of several reasons for the persecution feared.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has 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. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.
Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
It was also common ground before me that for the purposes of the Convention, a political opinion need not be an opinion actually held and that it is sufficient if the RRT finds that such an opinion is imputed by the persecutor.
In this case, the RRT was satisfied that the applicant was outside her country and that she genuinely held a strong subjective fear of persecution. The Tribunal found that the applicant did not possess a well founded fear of persecution by reason of her nationality, religion or ethnicity although it was agreed that the applicant’s case was never framed in terms of nationality, religion or ethnicity.
The applicant’s claims
Accordingly, what falls to this Court to consider is the manner in which the Tribunal dealt with its assessment of whether the applicant’s subjectively held fear of persecution related to a reason referred to in the Refugees Convention, the Refugees Protocol and the provisions of the Act (as amended in 2001) and, if so, whether that subjectively held fear of persecution for a Convention reason was a “well founded fear”.
As indicated, the applicant conceded that the Tribunal correctly stated the applicant’s claim as being fear of persecution if she returned to Sri Lanka for political reasons. In particular, because of the imputation that her family had an involvement with the LTTE. The applicant’s case was that in dealing with the claim of persecution for political reasons, the Tribunal had regard predominantly to matters pertaining to religion which was a separate and unrelated ground not ever agitated by the applicant and in respect of which she, understandably, failed.
I do not accept the applicant’s characterisation of the Tribunal’s analysis. It is correct to say that the Tribunal did explore religious issues but I find that it did so for the purpose stated in its reasons, being “assessing whether the authorities would suspect that her father was engaged in support of or trade with the LTTE” and, as the Tribunal went on to reason “[t]o make that assessment it is necessary to re-visit the matter of the Muslim identity of the family.”[CB67].
I also accept the respondent’s contention that, whilst the Tribunal examined the applicant’s case from the point of view of fear of persecution for religious and/or nationality and/or ethnic grounds, it did not do so at the cost of excluding the claim actually agitated by the application which was fear of persecution for imputed political belief.
The next ground relied upon by the applicant is that it was unreasonable for the Tribunal’s to find that the March 1999 attack on the applicant’s father was not politically motivated and/or that in successive months threats from unknown sources couched in political terms were made to the family at their new home.
Counsel for the applicant distanced himself from the written contentions previously filed by the applicant to the effect that in order for the applicant to establish that the Tribunal had acted unreasonably, she would have to establish that the Tribunal had “acted perversely or absurdly”. Mr Broadfoot maintained that the decision under review was “illogical” and “absurd” but otherwise preferred to rely on the “insupportable on any reasonable basis” and “manifestly unreasonable” extrapolation of the unreasonableness test. I accept Mr Braodfoot’s approach.
The significance of the Tribunal’s finding that the vicious assault in March 1999 was a criminal act rather than an act in pursuance of political persecution, is that the criminal act cannot form part of a subjective fear referrable to a Convention reason. It is merely a tragic and devastating event for this family.
I am not satisfied that the Tribunal’s finding, that the attack in March 1999 was merely a criminal act, was manifestly unreasonable within the meaning of the relevant authorities such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
I find that the Tribunal’s reasoning in the present case was comprehensible. The Tribunal took into account the evidence submitted by the applicant and had the benefit of observing the applicant give evidence before it (albeit likely filtered by an interpreter). On that basis, the Tribunal undertook a fact finding process and made findings of fact. In doing so, the Tribunal clearly preferred some parts of the applicant’s evidence over other parts of her evidence. For example, it preferred the applicant’s statement that her father did not know any of his attackers over her previous statutory declaration that her father recognised 3 of his attackers from the period of his detention.
Counsel for the applicant argued that there was no inconsistency in the applicant’s evidence in relation to her father’s familiarity with his attackers. The transcript of the Tribunal hearing was not tendered in evidence before me. I find that it would be unsafe for me to make a finding about the distinction sought to be drawn by the applicant, between the applicant’s father’s knowledge of his attackers as opposed to recognition of his attackers, without the benefit of the transcript, at least. The Tribunal’s finding that there was an inconsistency in the applicant’s evidence on this point is, itself, a finding of fact, within the exclusive province of the Tribunal save for in circumstances of jurisdictional error. However, as I said, the transcript of the Tribunal hearing was not utilised in this case. Furthermore, there was no allegation or evidence by the applicant that her evidence to the Tribunal was inaccurately translated or that the Tribunal’s enquiries of her in this regard were misleading or mischievous.
As the Honourable Justice Kenny observed in Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220 at para 146 –
“A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or unreasonable reasoning: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Roads Corporation v Dacakis [1995] 2 VR 508, Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543.
It is also not the case that the Tribunal was bound by evidence adduced by the applicant, or those parts of the evidence most favourable to her case. The Tribunal did not conduct an adversarial hearing where evidence is tested by another party or there is a contradictor. Most significantly, the fact finding function of the Tribunal is not a function which this Court is now able, or empowered, to embark on again.
Counsel for the respondent referred the Court to the unreported decision of the Honourable Justice Ryan in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 in which His Honour observed:-
On analysis, what the applicant has imputed to the Tribunal as errors of law were no more than omissions by the Tribunal to make the findings of fact that the applicant wished it to make on the evidence. The Tribunal came to its view, as it was required to by the Act, after forming its own assessment of the applicant's credibility and the probability, either as a matter of logic or human experience, of his assertions being true: Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522 at [15]. This fact-finding function is a vital part of the statutory jurisdiction conferred upon the Tribunal, and nothing that has been put on the applicant's behalf shows any error of law by the Tribunal in reaching its conclusions of fact. It is not sufficient that this Court might have taken a different view of the evidence, had it been entrusted with the decision-maker's task.
I adopt with respect those observations as being applicable to this case.
It does not appear that at any time the applicant put her claim of political persecution as being based on her father’s detention and the series of threats couched in political terms made to her family in the months following her father’s release from hospital as distinct from the assault on her father in March 1999. That is, it appears that the assault was always integral to the basis of the applicant’s genuinely held fears or persecution. As I have found that the Tribunal’s finding (that assault was not politically motivated) was not unreasonable in the context of a ground of judicial review, it follows that the genuine fear of persecution held by the applicant was not attributable to a reason caught by the Convention. As such, I agree that the applicant’s refugee claim, as it was formulated before the Tribunal, properly failed.
In the circumstances, I will dismiss the application.
I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application. I will hear from the parties in the event that they are unable to agree to the quantum of costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: Jessica Beck
Date: 24 January 2005
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