MZWAO v Minister for Immigration
[2005] FMCA 407
•11 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWAO & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 407 |
| MIGRATION – Review of Refugee Review Tribunal decision − whether Tribunal failed to consider that refusal to participate in corruption may be an expression of political opinion − whether Tribunal failed to consider essential question of fact whether State authorities separate from corrupt officials. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670 V v Minister for Immigration and Multicultural Affairs[1999] FCA 428 Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 Buultjens v Minister for Immigration and Multicultural Affairs [2001] FCA 1058 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697 |
| Applicant: | MZWAO & MZWAP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1334 of 2003 |
| Judgment of: | Phipps FM |
| Hearing date: | 7 February 2005 |
| Last Submission: | 7 February 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the decision of the Refugee Review Tribunal made on 7 October 2003 is set aside.
That the application is remitted to a differently constituted Tribunal for determination and decision in accordance with these reasons.
That the respondent pay the applicant’s costs to be agreed and if not agreed to be fixed upon application to Federal Magistrate Phipps.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1334 of 2003
| MZWAO & MZWAP |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) to review a decision of the Refugee Review Tribunal.
The applicants are husband and wife and citizens of Ukraine. They arrived in Australia on 8 December 2001 travelling on Ukrainian passports as the holders of tourist visas valid for a stay of one month.
On 7 January 2002, the applicants applied for protection visas.
On 22 April 2002, a delegate of the respondent determined that the applicants were not persons to whom Australia had protection obligations and refused the application.
On 15 May 2002, the applicants applied to the Tribunal for review of the delegate’s decision. By a decision dated 7 October 2003, the Tribunal affirmed the delegate’s decision to refuse to grant protection visas. The application to the Federal Magistrates Court was filed on
27 November 2003.
The applicants’ claims
The applicant husband worked in the State Price Control Inspectorate. He found many cases of tax violations which resulted in fines. He was often offered bribes so that he would overlook the violation but refused. Often, the managers of those companies would contact his boss and he would be withdrawn from auditing those companies and threatened with losing his job.
Because he uncovered many irregularities, he was transferred from the industrial and manufacturing sector to the fuel and power supply system.
In the audit of a large petrol trading company, he found the full amount of sales surcharge had not been paid. He imposed a fine. He was offered a bribe which he refused. The director who offered him the bribe said that if he could not resolve the problem he would approach the head of the Inspectorate. The husband concluded that he would not be able to uphold the law and decided not to submit the documents so they could not be destroyed.
The next day at work he saw the director waiting for a meeting with his boss. Two days later, some people rang his Department and threatened to physically harm him if he did not submit the paperwork. He did not listen to them. They then rang his wife and threatened her that she would not see her husband again. His wife was distraught and he realised he had no choice but to submit the paperwork. The matter was then resolved in favour of the company.
The husband was promoted to senior inspector because of his high work standards. He expected he may have problems at work and at home as a result of his inspections, so he decided to divorce his wife to provide more security for her. She reverted to her maiden name
He became involved in auditing a company with dealings with the company he had audited previously. Given that he knew that the directors of those companies would try to resolve any problem in the same way, he passed on the documentation he had prepared to the Republic Inspectorate in Kiev. The following day he received many threatening phone calls. His wife was also threatened. Management at the local level threatened to dismiss him
He was returning from work when attacked by four persons who beat him unconscious. When he was in hospital they continued threatening his wife. His wife, five months pregnant, lost the baby due to pressure caused by the constant threats and from the effect of the beating she received. He and his wife sold their apartment and moved to another place however, the people located them and continued threats. In November 2001, their flat was broken into and they were robbed.
He and his wife came to the conclusion that they had to leave the country. His wife changed her surname again and went into hiding. He applied for Australian visas. Once granted, he sent the documentation regarding the company to the Republic Inspectorate. They left for the airport late at night so as not to be detected. The husband claimed they could no longer live in the Ukraine because of the threats.
The wife said her peace of mind was destroyed when her husband began his job at the State Price Control Inspectorate. He would come home from work in an awful mood. They began to receive unpleasant phone calls. She received a phone call that it would be very bad for her unless she influenced her husband. A day later she received a phone call and was told she would never see her husband again. Late in the afternoon, she received a phone call from hospital that her husband had been taken there unconscious. She went to see him. Two men approached her near their apartment and one hit her in the stomach. She lost the baby she had been expecting.
The Tribunal's findings
The Tribunal accepted that corruption exists in the Ukraine and often there is a connection between corrupt public officials and criminal elements. It referred to independent information to this effect. The Tribunal accepted that the applicant husband was an employee of the State Price Control Inspectorate since 1996, and that he performed his duties conscientiously and ethically and that he was promoted.
The Tribunal accepted that he was often offered bribes but refused them. It accepted that companies would contact his supervisor who would take bribes to rescind the fines. The Tribunal accepted that before he was promoted he had difficulties over one audit, his boss eventually reviewed his report and changed it and he received threatening phone calls at home.
The Tribunal accepted that the husband was assaulted and his nose broken as he claimed. It accepted that his wife had lost her baby. The Tribunal accepted that she was assaulted but did not accept that the assault was the reason she lost the baby.
The Tribunal accepted that there had been a theft but found that it was a common act of criminality done by an unknown person.
The Tribunal found that the husband gave differing versions of the time at which he sent documents to the national office in Kiev. His original claim said he sent the documents to Kiev before the incident when he was attacked. At the hearing, he said he had sent them just before he left the Ukraine. The Tribunal considered that the discrepancy indicated that the husband fabricated the issue regarding reporting to his national office, bypassing his local office, in order to bolster his claims.
The applicant's claim was that the harm done to him when he was assaulted was for the Convention reason of the applicant's political opinion. The Tribunal said:
In light of the foregoing, the Tribunal accepts that applicant 1 was assaulted on 26 June 2001 by persons unknown to him whom he classifies as "Mafia". It accepts that the essential compliance aspect of his work may have motivated the assault however it does not accept the proposition put by the adviser that this harm was for the Convention reason of the applicant's political opinion. It has been argued that by doing his job according to the rules the applicant was expressing a political opinion, "working honestly for the benefit of the State"; the Tribunal does not accept this interpretation. The applicant has maintained consistently that he was doing his job as his status of public service required him to do and he was in fact promoted to a higher rank because of his skills. This indicates to the Tribunal that the State expected him to carry on the way he did, without fear or favour. At no time has the applicant expressed a view that he wanted to rid the country of the corruption in which it finds itself or sentiments of a similar nature which could give rise to a perception of political activism or intent. He has proceeded with his work over a number of years, including after his assault, producing technical reports on audits conscientiously carried out. That the results of his work was at times undone by corrupt superiors did not please him but he has not expressed any views which could be construed as having a political overtone or intent. He complained (unfairly according to the Tribunal) about the inactivity of the police with respect to his complaints, but this can hardly be considered a political stance. Nor did the police consider it such.
His corrupt superiors and criminal elements at large, referred to as Mafia, perceived the applicant as an obstacle to their plans to obtain money or avoiding paying money, nor were they acting in the interests of the State. The State expected nothing less than the applicant carrying out his duties as he did. It should be noted that the applicant stated that he took an oath which he took seriously. There is nothing in the evidence which indicates that his superiors or anyone else imputed a political opinion against the State to him by virtue of his work in the Inspectorate.
The Tribunal then considered whether State protection was available. It said that the existence of corruption in the Ukraine was not in dispute. It said that although there is corruption, the country reports which it had referred to indicated that instances of corruption are investigated and some of them proceed to prosecution. The Tribunal said that the police did react to the applicant's complaints regarding the assaults and set up investigations. These have not been concluded. The Tribunal concluded on the basis of the information it had considered that the police and judiciary could provide a reasonable level of protection. It found that State protection was available to the applicant.
The applicant's arguments
The amended application alleged jurisdictional error. The particulars are:
i)It failed to consider the question whether the acts of the first applicant constituted a refusal to cooperate with corrupt state practices and must lead to the attribution or imputation to him of a political opinion;
ii)It misunderstood and/or misinterpreted the Convention definition and/or applied the wrong test as to what will constitute the existence of a Convention nexus on the grounds of imputed political opinion;
iii)It wrongly characterised the acts committed by and/or at the instigation of corrupt officials of the National Tax Office as acts not of the State but of non-state actors or agents of persecution;
iv)If the persecutory acts committed or threats made by or at the instigation of corrupt State officials were properly to be characterised as those of State agent or actors, it applied the wrong standard in assessing whether in relation to any harm feared by the Applicant an effective and adequate State protection was available and/or the state was able to provide such protection;
v)Alternatively to be properly characterised as committed or made by non-state agents simpliciter it applied the wrong standard in assessing whether in relation to any harm feared by the Applicant effective and adequate State protection was available and/or the state was able to provide such protection;
vi)It reached a conclusion in relation to the reasons for his flight and the well-foundedness of his fear of persecution on return on the basis of a discrepancy as to when a report was sent to the central branch of the Taxation Office when the material before the Tribunal did not in fact support the finding of a discrepancy in the conclusion;
vii)And/or the material upon which the Tribunal relied was so inadequate that the only inference open is that it applied the wrong test or was not satisfied in respect of the correct test that it was bound to apply;
viii)It reached a conclusion regarding the availability of state protection on the basis of cited reports indicating that instances of corruption are investigated in some proceed to prosecution and the changes to prosecution arrangements when that information did not in fact support the relevant findings and the conclusion;
ix)And/or the material upon which the Tribunal relied was so inadequate that the only inference open is that it applied the wrong test or was not satisfied in respect of the correct test that it was bound to apply.
Discussion
In Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670, Merkel J. said at [32-34];
32 The case law to which I have referred demonstrates that exposure of corruption can, in a wide range of circumstances, lead to political persecution. Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state. Likewise, refusal to participate in a corrupt state system can also be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the state. Also, as the recent Canadian decision in Klinko demonstrates, exposure of systemic corruption may be an expression of "political opinion" even if the state is against corruption but is unable to protect the applicant from persecution on this account. In such a case, however, it may be difficult to establish that the exposure of corruption is a manifestation of a political act such as defiance of, or opposition to, the machinery, authority or governance of the state.
33 It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than as any form of opposition to, or defiance of, state authority or governance.
34 A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 268 and 284. In each case the question of whether the nexus has been established is a question of fact for the RRT.
One of the cases his Honour referred to is V v Minister for Immigration and Multicultural Affairs[1999] FCA 428, 92 FCR 355(Full Court). Hill J. said at [16];
16 As I understand Davies J, as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government, and is persecuted for that reason. It is not necessary that the person be a member of a political party or other public organisation or that the person's opposition to the instruments of government be a matter of public knowledge. Of course, the higher the person's political profile, the easier it may be to persuade a tribunal of fact that the person has been persecuted on account of political opinion, rather than for some other reason; but that is a matter going to proof of the facts, not a matter of law.
Later, his Honour said at [32-33]:
32 The exposure of corruption itself is an act, not a belief. However it can be the outward manifestation of a belief. That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences. If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion. Whether that is the case in Russia is a matter for the Tribunal, not for this Court. So too must be the question whether the testimony of Mr V about what happened to the friend is believed as well as the question whether Mr V's fears about his receiving the same treatment as the friend is believed and whether that fear is well founded.
33 It is not necessary in this case to attempt a comprehensive definition of what constitutes "political opinion" within the meaning of the Convention. It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration & Ethnic Affairs v Y [1998] FCA (unreported, 15 May 1998, No. 515 of 98) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.
The Tribunal accepted that the applicant carried out his work conscientiously and refused to become involved in the corrupt behaviour of his superiors and criminal elements. It found that his corrupt superiors and criminal elements perceived the applicant as an obstacle to their plans to obtain money or avoiding paying money, nor were they acting in the interests of the state.
The Tribunal said that the state expected nothing less than the applicant carry out his duties as he did. He said that at no time had the applicant expressed a view that he wanted to rid the country of the corruption in which it found itself or sentiments of a similar nature which could give rise to a perception of the political activism or intent. It said that there was nothing in the evidence which indicates that either his superiors or anyone else imputed a political opinion against the state to him by virtue of his work in the Inspectorate.
The Tribunal accepted that the applicant had been harmed because of his refusal to engage in or assist corruption, but it found that there was no participation, condonation or complicity by the state. It said that its reasons indicated that the applicant could be exposed to serious harm by non-state agents for a non-convention reason.
The question is: has the Tribunal considered whether the applicant’s conscientious work within a corrupt system could be the manifestation of a political opinion? It has accepted that he was the subject of harm because of his conscientious work and so the basis for a claim under the Convention exists.
It is implicit in the Tribunal's reasoning that what is described in the reasons as "the state authorities" were separate from the applicant's corrupt superiors. This is a matter of fact. The complaint about the Tribunal's reasoning is that it did not consider the concept that refusal to participate in a corrupt state system could also be seen as an expression or manifestation of political opinion. This is wider than a complaint about a failure to consider a necessary finding of fact, but it encompasses the complaint about the fact finding process. The question of fact is whether there is a corrupt state system, which is another way of saying whether the state authorities were separate from the applicant's corrupt superiors.
The Tribunal cannot assume that, in the context of the difficulties the husband faced, that the state authorities were separate from the applicant's corrupt superiors. It has to consider this question of fact and make a finding.
A fair reading of the Tribunal's reasons as a whole shows that it has not considered this question, but has assumed that the state authorities were separate from the applicant's corrupt superiors. In one sense that may be correct in that the independent information referred to by the Tribunal showed that the authorities in the Ukraine were alarmed at the growth of organised crime and corruption and were attempting to take steps to combat it. But the question had to be considered by the Tribunal as it affected the husband.
The Tribunal said that the existence of corruption in the Ukraine is not in dispute. It referred to independent information which included an extract from a report, UK Home Office, Country Information and Policy Unit, Ukraine Assessment April 2003, Organised Crime and Corruption. Extracts which are relevant are:
The government is unable to liquidate these criminal elements, and its ability to limit criminal activities is hampered by lack of security personnel and equipment, which often fails to meet the standards of that possessed by the criminals. In addition, the fusion of corrupt state officials with criminal formations is so strong that the measures taken against them frequently encounter resistance on the part of the violators and highly placed protectors.
However, the pervasiveness of corruption, connections between government officials and organised crime, and the political activities of organised crime figures continued during 1999 and often blur the distinction between political and criminal acts. The "Kuchmagate" tapes if authentic, will confirm that the ties between the political and the financial spheres reached to the highest level of the state. Politicians, politically connected businessmen, and journalists such as in the Georgi Gongadze case, were all victims of attacks which were sometimes fatal. In January 1999, the Prosecutor General accused members of parliament of trying to protect criminals and of hindering the state's fight against organised crime and corruption. Following an intensified fight against organised crime and corruption, there was an 11% increase in the number of bribery cases leading to criminal proceedings in 1998 compared to 1997 however, many high-profile corruption cases have been dropped, ostensibly because of lack of incriminating evidence, and anti-corruption legislation has been enforced selectively, mostly against government opponents and low-level officials.
This was material which the Tribunal could consider to determine whether, in the words of Hill J in V v Minister for Immigration and Multicultural Affairs: "the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it". His Honour said that if this was the case "the risk of persecution can be said to be for reasons of political opinion".
This is not a case where the Tribunal has made a finding of fact open to it on the evidence which cannot be challenged (Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413, [22-24], Hill J, Buultjens v Minister for Immigration and Multicultural Affairs [2001] FCA 1058, [12] Spender J). The Tribunal has not considered a question of fact were a finding is essential to enable it to consider the applicant's claim.
If the Tribunal had considered this question of fact and decided it in favour of the applicant, the fact that the applicant at no time expressed a view that he wanted to rid the country of corruption or sentiments of a similar nature might not have been relevant. The finding of fact and what follows from it, including what other matters may be relevant, are matters for the Tribunal. But the finding of fact is essential. If found in favour of the applicant, the question then would be, in the words of Merkel J. in Zheng, whether the applicant's conscientious work in a corrupt system was an expression of a political opinion.
Failure to consider a material question of fact may be jurisdictional error of the type described in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82]. In Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697, the Full Court of the Federal Court consisting of Kiefel, North and Mansfield JJ considered authorities on what is a material question of fact. Their Honours said at [14];
For the purpose of this line of authority, a material question of fact has been seen as one which is:
* a substantial issue on which the case turns;
* a key element of the applicant's case;
* the foundation of the applicant's contention;
* a matter central to the application;
* a matter having obvious relevance to the question whether the applicant has a fear of persecution;
The question of fact not considered by the Tribunal in this case meets these criteria.
The Tribunal found that effective state protection was available to the applicant. The starting point of its consideration was its finding, already discussed, that the applicant could be exposed to serious harm by non-state agents for a non-Convention reason. Since in making the findings that there were non-state agents and a non-Convention reason, the Tribunal failed to consider an essential matter of fact, the finding that there was adequate state protection must be reconsidered.
Complaint is made about the Tribunal's finding of fact that there was a discrepancy in the husband's evidence about the time when his report was sent to the central tax office in Kiev. It is not clear that there was a mistaken finding, but if there was, it was not crucial to the Tribunal's finding.
The final ground of the review is that the Tribunal reached a conclusion regarding the availability of state protection on the basis of reports indicating that instances of corruption are investigated and some proceed to prosecution when the information did not in fact support the relevant findings and the conclusion.
The UK Home Office country information which the Tribunal referred to does contain this information. The error in this part of the Tribunal's reasoning is not its finding that instances of corruption are investigated and some proceed to prosecution. The error is that it is based on the assumption, not a finding of fact, that, in the husband's case, the state authorities are separate from the husband's corrupt superiors. A finding of fact in favour of the applicant would mean that the issue to be considered is whether the police and judiciary could provide a reasonable level of protection against the state as influenced or controlled by the corrupt officials. That is not an issue the Tribunal has considered.
There has been jurisdictional error by the Tribunal because it has not considered an essential question of fact. The decision will be set aside and remitted for rehearing by a differently constituted Tribunal.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
7
2