MZTAB v Minister for Immigration and Multicultural

[2005] FCA 920

FEDERAL COURT OF AUSTRALIA

MZTAB v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] FCA 920

MZTAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 27 OF 2005

NORTH J
26 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 27 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZTAB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs of the appeal except for the costs of the hearing on 23 May 2005.

3.The appellant’s legal advisers are to pay the respondent’s costs of the hearing on 23 May 2005 fixed at $750.00.

4.The appellant’s legal advisers are not to charge the appellant for the preparation of the notice of appeal or outline of submissions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 27 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZTAB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	26 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a decision of Federal Magistrate Phipps delivered on 23 December 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 July 2003. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the appellant a protection visa. The appeal was heard by a single judge of the Court pursuant to a determination made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) on 12 May 2005.

2. The appellant is a Malaysian national of Indian ethnicity and Hindu religion.  The notice of appeal relied on two grounds.  The outline of submissions filed by the appellant addressed those two grounds.  At the hearing of the appeal the appellant expressly abandoned the second ground and addressed his oral argument to the Court in a way which appeared to be different from the first ground in the notice of appeal.  As formulated in the notice of appeal that ground stated:

   The learned magistrate erred in finding that the Tribunal had not failed to consider the appellant’s claim of being a Tamil Hindu Indian, saying that it was not a separate claim but an alternative way of describing what was put forward by the appellant and dealt with by the Tribunal.

3. So expressed, the ground asserted jurisdictional error by the Federal Magistrate on the basis that the Tribunal had failed to consider a claim made by the appellant.  In other words, it was to be contended that the Tribunal had not dealt with an aspect of the appellant’s claim.  The appellant’s outline of submissions filed in accordance with directions given by the Court claimed similarly that the error made by the Tribunal was that the claim relating to the appellant’s ethnicity ‘has not been considered by the Tribunal’.  Such a ground should be distinguished from an assertion that there was an error in the way a particular claim was dealt with by the Tribunal.  However, when oral argument commenced on appeal, it became clear that the gist of the appellant’s case concerned not whether the Tribunal had dealt with a claim of persecution by reason of the appellant’s ethnicity, but rather criticism of the way in which that claim had been dealt with.

4. Counsel for the appellant accepted the formulation of his oral argument (which was later addressed in the respondent’s supplementary outline of submissions) in the following way, namely, that the Tribunal committed reviewable error by failing to make any clear findings on the factual incidents relied upon by the appellant or by ignoring completely the appellant’s underlying arguments as to the chance of danger in the future for Indians in Malaysia.  Another way that the appellant put the argument was that the Tribunal failed to consider the deeper significance of the appellant’s claim based on his status as an Indian in Malaysia, and the risks that he faced of communal violence and police misbehaviour as a result.

5. In the light of the divergence between the oral submission, on the one hand, and the outline of submissions of the appellant on the other, the Court suggested that it would be assisted by further submissions in response by the respondent.  Consequently the hearing of the appeal was adjourned until 26 May 2005 to allow that further outline to be prepared.  A controversy now arises as to whether the way the argument of the appellant as now put is a new argument or whether the same argument was put to the Federal Magistrate.

6. If the present contention is a new argument, then the appellant requires leave to raise the argument at this late stage of the litigation process.  If it is not new, he does not need such leave.  One of the factors to be considered on an application for leave to rely on a new argument is whether the new argument can succeed on the merits.  If the argument cannot succeed on the merits, it is usually proper to refuse leave to rely on the argument on appeal.  If the argument is not new, then in order to succeed on the appeal the appellant must satisfy the Court that the argument has merit.  Consequently, whether or not the argument is new, the Court should consider the merits of the argument, albeit perhaps to a different degree of satisfaction.

7. I turn therefore to a consideration of the merits of the appellant’s case.  As I understand the appellant’s contention, he says that the Tribunal failed to genuinely address the fundamental claim that as an Indian he was in danger from communal violence in Malaysia and from unjustified targeting by the police or the security forces.  The appellant also made claims that he would be targeted by the police for making certain complaints about the treatment of Indians and would be discriminated against under government policies which favoured native Malays.  However, no issue is taken on the appeal with the rejection of these two claims by the Tribunal.  Argument on the appeal focused on the broader, general claim dependent on the appellant’s Indian ethnicity.

8. The Tribunal referred to the appellant’s claims on this aspect at 5–6 as follows:

   The applicant states in his protection visa application that in late February 2001 there was a racial clash in Malaysia.  He states that news of it did not reach the outside world because the media were barred from reporting what occurred. … He states that the riots were masterminded by the Muslim Youth of Malaysia Front and the Islamic Malaysian Party.  The applicant states that in 1969 in similar violence many Malaysians of Indian origin were killed and that there was such violence in Penang in 1998 when Hindu temples were burned and Hindus killed.  The applicant claims that the violence in February 2001 was the worst so far and that a lot of ethnic Indians were killed.

   The applicant claims that many Indians were arrested and detained under the Emergency Ordinance and the Internal Security Act.  He states that ‘as many professional and educated ethnic Indians gave info and details via Internet to the international news agency, the hatred on the ethnic Indians grew further followed by torture and abuse by the Malaysian police’.  He states that World Tamil Association members, of which he was one, were the targets of abuse by the police.  He states that many Indians were arrested and banished to other states as a restricted resident.  He states that many Indians in his home town were arrested and gave information to the police.  ‘With false accusations drafted the Special Branch police unit detained most of the Indian ethnic social society members nationwide.  Those arrested were put under the Internal Security Act’ which gives the authorities the power to detain for as long as necessary ‘to save the racial harmony’.  The applicant claims that Indians were falsely alleged to be involved in criminal activity.

   The applicant said at the hearing that the actual fighting had not affected him directly and that he did not know those who were killed.  The violence was reported in the papers and this is where he learned that some people had been killed.  Soon afterwards, however, the authorities began to harass all of the other Indians in the district: he said that checkpoints were set up and the movement of Indians restricted in certain areas.  The applicant said at the hearing that this harassment and taking of Indians into custody was still happening at the time he left the country in October. …The applicant said that he knew of seven people from the Tamil Association who had been affected by the harassment but that there were more than this.  I asked the applicant if the police action had been taken just in his area where the trouble had broken out and he said that he had read in the papers that what occurred extended across all of the Kuala Lumpur area and was taken to keep the situation under control.

9. The Tribunal continued at 7–8:

   The applicant claims to fear that he would come to the same fate as his fellow ethnic Indians if he were to return to Malaysia because of his involvement in the Tamil Association and the exposure by ethnic Indians of the violence which occurred and its cover-up by the government.  He states that Islamic fundamentalism has a strong following in Malaysia and that this movement is supported by the government and by a corrupt police force.  He states that it has been suggested that Malaysia become an Islamic state and that racial violence could lead to an upsurge in Muslim militancy.  He said at the hearing that members of minorities are the first to suffer in any troubles.  He fears that the voices of members of minorities will not be heard.

   The applicant does not believe that any ethnic Indians are safe in Malaysia.  The applicant refers to the assassination of an ethnic Indian politician in the state of Kedah in 2000 apparently by Malays.  He also refers to an ambush of a house in which five people were killed.  He states that ethnic Indians have been killed in police operations since the violence in February 2001 and in news reports have been falsely connected to criminal offences such as kidnapping and armed robbery.  He mentions the theft of army trucks and weapons by a Muslim Malay gang and alleges that the same group launched a grenade which hit two temples in Kuala Lumpur; they also have killed an ethnic Indian policeman and other people.  He states that ‘they are now in custody of the Malaysian authorities’.

10. The Tribunal then referred to relevant country information, including information as to the general position of Indians in the Malaysian community.  By way of example, the Tribunal referred to the Human Rights Watch report as follows at 9–10:

    Human Rights Watch reported in its World report 1999 (New York, 1999 p 200, covering events of December 1997 to November 1998) that ‘the Malaysian government remained extremely sensitive toward anything that might cause an outbreak of ethnic violence.  In mid-March (1998) the government intervened to settle a conflict between Muslims and Hindus in Penang, where Hindus had tried to build a temple within twenty meters of a mosque’. …

    The Tribunal has reviewed subsequent annual reports by Human Rights Watch and found a report of the episode which is at the heart of the applicant’s claim (World report 2002 New York, 2002 p 241, covering events of November 2000 to November 2001):

    Ethnic violence broke out on 9 March (2001) when ethnic Indians and Malays clashed in Kampung Medan, a poor quarter of Kuala Lumpur.  Police reported that six people, five of Indian origin, were killed and over fifty injured.  Most of the wounded were also ethnic Indians.  Four opposition party leaders jointly challenged the official casualty figures, suggesting the actual figures were higher: in response the government threatened to charge them with sedition, though no charges were ultimately brought.  Indian community representatives continued to demand further investigation.

    The situation was quickly brought under control although Indians present thought that the police response was less than it should have been.  It had been sparked when an Indian funeral procession and a Malay wedding intersected.  Reports indicated that ‘racial clashes have been rare in Malaysia over the last three decades’ (‘Death toll rises in KL clashes’ Singapore Times 10 March 2001).  ‘Analysts do not see Malaysia facing the kind of racial unrest experienced by Indonesia’ (‘Racial violence shatters lengthy period of peace’ The Times (London) 12 March 2001).

11. The Tribunal then set out its findings and reasons.  On the issue which was the subject of the argument on appeal to this Court, the Tribunal said at 12–13:

    I accept that the applicant is of Indian ethnicity and his account of his working life in Malaysia. 

    I accept the applicant’s account of his involvement with the World Tamil Association and that he was deeply troubled by the violence which erupted in March 2001 in which several Indians were killed along with some Malays.  I note that the applicant was not directly affected by the violence.  I note too the outbreak of racial violence was regarded as a rare occurrence, that the previous similar incident was in Penang in 1998 and that I have found no reports of any further similar episode since that which occurred in March 2001.  It is also clear that the Malaysian authorities regarded the episode in March 2001 with the utmost seriousness and acted to bring it under control.  The establishment of checkpoints in the area was one approach employed by the authorities and it is possible that the applicant may have been among the many people no doubt inconvenienced by this and other security measures in place at the time.  I do not consider, and the applicant has not claimed, that he was mistreated or otherwise harmed in this context. 

    There are a number of aspects of the applicant’s account of the circumstances surrounding the violent episode in March 2001 which do not accord with independent information which I have read.  The applicant claimed, for example, that the conflict was masterminded by Islamic organisations, whereas it appears to me from what I have now read to have been ignited locally by a particular incident.  His remarks about the extent of arrests made because of what occurred seems to me to be exaggerated: there were some 170 people arrested at the time and nothing to indicate that any Indian from the state of Selangor was at risk of arrest as the applicant appeared to claim, nor that the members of the World Tamil Association were particularly targeted in what occurred nor that the residence rights of Indians were affected on account of what occurred at the time.  As well, his remark that it was the exposure of news about the incident which led to many of the arrests is not supported by what I have read: the incident was reported in the press and the only evidence I have found that the government tried to influence how it was reported was that the press was asked not to publish inaccurate news about the episode.  This, along with the reporting of the violence which the applicant himself read to learn about what happened, indicates to me that the widespread arrest of Indians who gave information about what occurred over the Internet or to news agencies, as the applicant claims occurred did not occur.  The applicant said that the widespread arrests of Indian people in relation to the incident was still happening at the time he left the country in October 2001, some seven months after the episode, and I do not consider that the evidence indicates that this was so. 

12. After dealing with the other two issues raised in the appellant’s claims, the Tribunal said at 14–15:

    I accept that the applicant, as a member of an ethnic and religious minority, may be concerned about the increased emphasis on Islam which has been evident in Malaysia for some years now.  The evidence before me indicates that followers of other religions are able to do so as the applicant said he had been able in the past without difficulty.  Nor do I consider that he would have difficulties of a kind which might engage the provisions of the Refugees Convention if he were to again be involved in the World Tamil Association in the way he was in the past. 

    I do not consider that there is a real chance that the applicant would face persecution for a Convention reason if he were to return to Malaysia and I find that his fear is not well-founded.

13. From these passages it is evident that the Tribunal did not accept that there was an objective basis for the appellant’s fear.  Importantly, the Tribunal found that racial violence was regarded as a rare occurrence and was treated with the utmost importance by the Malaysian authorities.  Furthermore, the Tribunal found that the appellant had exaggerated the extent of and misconstrued the source of the 2001 incidents.  I have some sympathy with the suggestion of the appellant that the question of the generalised danger to Indians in Malaysia was not dealt with by the Tribunal in a manner which was as clear as is desirable.  In the passage just referred to there is an emphasis on the particular specific events raised by the appellant in the application, with too little emphasis on the underlying complaint of the appellant that Indians were subject to dangers in the Malaysian community.

14. However, these are criticisms of style and expression, rather than content.  When one looks carefully at the findings of the Tribunal, they do support the final conclusion that the appellant’s fear, which whilst not doubted, was not objectively well-founded.  The Tribunal’s findings that racial violence was rare and that the authorities reacted to control it, together with the assessment that the appellant had overreacted to the events, supports the conclusion reached by the Tribunal, and is directed to the claim made by the appellant of the dangers feared by the appellant arising from his Indian ethnicity.

15. There is no justification for the argument that the Tribunal did not deal with this issue.  The appellant’s general claim was based on his Indian ethnicity.  Whilst there is some validity in the criticism that the Tribunal dealt with this issue in a way which was not sufficiently clear, the Tribunal did deal with the issue, made findings on the necessary elements, and came to the conclusion which it expressed.  It follows that the Tribunal did not fall into jurisdictional error, and that the Federal Magistrate was correct in his conclusion to that effect. 

16. Thus, whether the argument of the appellant is new or not, his arguments are bound to fail on the merits, and if leave is necessary, it should be refused.

17. The question as to whether the argument is new or not, however, does have a consequence on the issue of costs.  It would ordinarily follow from the conclusion that the appeal must be dismissed that the appellant should pay the respondent’s costs of the appeal.  There are, however, two complications.  One is the extent to which it is fair that the appellant pay the costs of the respondent for the first hearing day, and the second is whether an order should be made that some part of the costs be borne by the legal representatives of the appellant. 

18. I have come to a firm view that the notice of appeal and the outline of submissions filed by the appellant were inadequate and did not sufficiently expose the argument which was ultimately put.  Furthermore, they both put forward one ground of appeal which was abandoned on the day of the hearing.  It would be wrong for the appellant personally to bear the costs of the preparation of those inadequate documents.  Consequently, I will order that the legal representatives of the appellant make no charge to the appellant in relation to the production of those documents. 

1. A more difficult question arises in relation to the costs of the first hearing day.  The costs of that day were rendered useless.  The question is what was the cause of that situation.  The initiating cause was the failure of the appellant’s documents to make the arguments clear.  The next element was that the Court regarded it as important for its own purposes to have a considered response by the respondent in the circumstances.  Perhaps, third, it was the failure of the respondent to proceed immediately on the day with a response to the arguments as they had been put by the appellant.  Clearly enough, not too much can be made of this final point.  As counsel for the respondent rightly says, the primary reason why the matter was adjourned was at the behest of the Court as a result of the discordance between the appellant’s documents and his oral argument.

2. In my view, a fair resolution would see a significant part of the costs of that day awarded in favour of the respondent.  It seems to follow that those costs should not be borne by the appellant personally but, again, by his legal advisers.  I do take into account the fact that something like the argument put by the appellant on the appeal was put to the Federal Magistrate.  It was not, however, taken up by the Federal Magistrate and the case was not determined by reference to that argument.  Therefore, it can hardly be said that the respondent should have expected the argument to be run in the way it was.  However, I do take that factor into account in reducing the full costs.  In the circumstances I intend to order that the appellant’s legal advisers pay to the respondent the costs of the hearing on 23 May 2005 fixed at $750. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             5 July 2005

Counsel for the Applicant:	T A Fernandez
Solicitor for the Applicant:	Mano Associates
Counsel for the Respondent:	E J C Heerey
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 and 26 May 2005
Date of Judgment:	26 May 2005