Mzwop v Minister for Immigration
[2005] FMCA 843
•23 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOP v MINISTER FOR IMMIGRATION | [2005] FMCA 843 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | MZWOP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 920 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Niall |
| Solicitors for the Applicant: | Phillip Zelman Schulman |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 920 of 2004
| MZWOP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on 15 July 2004 seeking judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 21 May 2004 (and handed down on
15 June 2004) affirming a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
The history
The applicant is a citizen of Moldova. He came to Australia on
29 September 2000 on a visitor visa and lodged an application for a protection visa (class XA, subclass 866) with the Department of Immigration and Multicultural Affairs on 31 March 2003.
The applicant claimed that he can not return to Moldova as he fears persecution owing to his political opinions, specifically, that he will be subjected to persecution at the hands of the head of a prison hospital (and his associates) where the applicant had been previously employed because of the applicant’s objection to the corruption he says was occurring.
On 21 May 2003, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. The applicant applied for review of that decision by the RRT on 12 June 2003.
In the decision made by the RRT, the RRT affirmed the decision of the delegate not to grant the protection visa. The RRT 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 Migration Act”) for the purposes of a protection visa. Specifically, the RRT member said:
a)“I do not accept that there is a real chance that, if the Applicant returned to Moldova now or in the reasonably foreseeable future, he will be persecuted by the head of the hospital or persons acting at the behest of the head of the hospital, in order to protect the corrupt practices which the Applicant identified at the hospital”; and
b)“Further and in the alternative, even if I were to accept that there was a real chance that the Applicant would be persecuted if he returns to Moldova, which for reasons given above I do not, I do not accept that this would be for one or more of the five Convention reasons”.
The applicant claims that the RRT exceeded or failed to exercise it’s jurisdiction, or committed jurisdictional error in that:
(i) The Tribunal failed to exercise its jurisdiction by failing to resolve the claim made by the Applicant as to the motivation of the two physical attacks suffered by him and consider whether they were motivated by a Convention reason.
(ii) The Tribunal failed to deal with the claim that the head of the hospital had threatened the Applicant confirming its conclusions to a finding that the head of the hospital had “laughed at the Applicant” in circumstances where the claim was that the head of the hospital had laughed and threatened by saying “you see what happens if you don’t listen to me”.
(iii) The Tribunal erred by failing to take into account a relevant consideration being the claim of the Applicant that the head of the hospital had threatened the Applicant.
(iv) The RRT erred by assuming that exposure of corruption was not Convention related, and thereby it failed to address the case put by the Applicant that his exposure of corruption had been perceived to be a political act that threatened or defied the state authorities.
(v) The Tribunal failed to deal with the question of whether the Applicant was a member of a social group being a state employee who had complained about corruption.
Counsel for the applicant made the following submissions:
3.In its decision the Tribunal rejected the claim on two bases:
(a) it rejected part of the factual basis underpinning the claim; and
(b) concluded that in any event any harm that he would suffer would not be for a convention reason.
4. It is submitted that both aspects of the decision are infected with jurisdictional error.
Grounds 1(ii) and (iii): The factual findings
5. The Tribunal accepted that the applicant came into conflict with his superiors at the hospital because of allegations that he had made against them. The allegations that he alleged that he made, and the Tribunal accepted that he made, related to serious corruption within the facility in which he was employed, including:
(a)torture of prisoners;
(b) condoning or permitting rape of prisoners to occur;
(c) bribery;
(d)theft of prison supplies; and
(e) early release of some prisoners and i1legal extension of sentences of others.
6.The Tribunal accepted the applicant had been attacked on two occasions resulting in serious injury.
7. However, crucially, at CB 143, the Tribunal rejected the claim that the head of the hospital threatened him or instigated attacks on him. It did so for two principal reasons namely that the applicant’s “own evidence” did not suggest the hospital head perceived him as a threat and because “The applicant says the head of the hospital just laughed at him”.
8. Second, the Tribunal, at CB 144, says that the “applicant’s own behaviour does not suggest that he in fact felt threatened”. This later finding occurred after the Tribunal recited that the applicant “did not suggest” he did anything to pursue his concerns after he was redundant.
9. On the same page the Tribunal notes:
As I have said, I do not accept that the head of the hospital perceived the Applicant as a threat or that the Applicant did anything after he was made redundant which would have led the head of the hospital to perceive him as a threat.
10. The Tribunal has misunderstood the claim made in two ways. First the Tribunal concludes that the applicant’s own evidence did not suggest that the head of the hospital perceived him as a threat. However, the claim, consistently made was that the head told him that “you see what happens when you don’t listen to me”: see CB 31.
11. Second, the interview with the Hospital head, was claimed to have occurred after the applicant had left his employment, in response to threats and as a means of trying to stop them continuing.
12. The Tribunal did not reject the claim that the meeting took place. However, it has misunderstood the nature of the claim in relation to it. Either the Tribunal has not addressed the claims made or the Tribunal made findings for which there was no evidence.
13. It is not open to the Tribunal to reject the claim on the basis that the applicant’s own evidence does not make it out whilst misstating or misunderstanding the tenor of the evidence. It is no mere error as to the facts. Contrary to the approach of the Tribunal the evidence was consistent with his claims. There as no inconsistent that would have permitted the Tribunal to reject the account. [sic]
Ground 1(iv): Convention Reason
14. The Tribunal said there was “no evidence” to support a finding that an harm would be for a Convention reason. It is submitted that this reveal an error of law. Whether there is any evidence to support a finding is a question of law: Collector of Customs v Agfa-Geveart (1996)186 CLR 389. [sic]
15. Here there was evidence including:
(a) the nature of the allegations relating to systemic rather than individual corruption;
(b) the fact that the applicant complained to the Secretary of Justice and not just the police;
(c) the fact that the applicant had worked to try and bring the corruption to an end rather than simply have the offenders prosecuted;
(d) the context in which corruption has been allowed to flourish in Moldova with political support.
16. The conclusion that there was no evidence to support a finding demonstrates that the Tribunal must have misunderstood or failed to apply the Convention definition.
17. Alternatively, the Tribunal assumed that the exposure of corruption and persecution for political opinion were mutually exclusive when in truth the conduct of the persecutor may be both to avoid criminal sanctions and to repress dissent.
In response Counsel for the respondent’s submissions were in the following terms:
14. A fair reading of the Tribunal’s decision as a whole demonstrates an assessment of all of the applicant’s claims and the making of findings that, on the evidence before it, were open to the Tribunal.
15. In particular, the Tribunal found, as a matter of fact, that the head of the hospital did not threaten the applicant or instigate attacks on him after the applicant was made redundant in December 1998. The Tribunal gave detailed reasons for this finding of fact, which was clearly open to it on the evidence before it.
16. Careful consideration of the applicant’s challenge to this factual finding evinces an invitation to the Court to embark on merits review. At its core, the applicant’s complaint is directed to the correctness of findings of fact and the Tribunal’s treatment of evidence. Such findings were uniquely within the Jurisdiction of the Tribunal and are not now within the jurisdiction of the Court.
17. At paragraph 10 of his contentions, the applicant argues that the Tribunal misunderstood his claim, in point of fact, this argument relates to the Tribunal’s treatment of particular items of evidence. There is a distinction between a failure to deal with part of the competing body of evidence and a failure to address and deal with how the claim was put. The former will not of itself found a ground of judicial review.
18. In any event, the Tribunal’s treatment of the applicant’s evidence does not give rise to any error. In its decision, the Tribunal stated [CB 143.10] that:
As I put to the Applicant, his own evidence does not suggest that the head of the hospital perceived him as a threat.
19. This assessment of the applicant’s evidence constituted one of the Tribunal’s bases for its finding that the applicant was not the subject of threats by the head of the hospital or attacks by his associates after December 1998. This assessment of the evidence was put to the applicant at the hearing, at which the applicant was represented and assisted by an interpreter. In its decision, the Tribunal stated [CB 140.7-8] that:
I put to the Applicant that his account did not suggest that the head of the hospital would have perceived him as a threat to him. The Applicant said that he did not know. He said that the head of the hospital had just laughed at him.
20. One of the Tribunal’s reasons for this assessment of the applicant’s evidence was the applicant’s statement that “the head of the hospital just laughed at him” when the applicant allegedly informed the head of the hospital about his complaint to the Minister of Justice [CB 31.8 and 137.7]. It was open for the Tribunal to conclude implicitly that, by laughing at the applicant, the head of the hospital was dismissive of the applicant as a threat. Although, in his initial written statement, the applicant stated that the head of the hospital also said “You see what happens if you do not listen to me”, this does not necessarily imply a threat to harm the applicant, particularly when considered in the context of the head of the hospital laughing at the applicant.
21. In any event, it was not necessary for the Tribunal to refer to every piece of the applicant’s evidence in its reasons for its decision. Nor was it necessary for the Tribunal to give a line-by-line refutation of the evidence that was contrary to findings of material fact made by the Tribunal.
22. Another reason for this assessment of the applicant’s evidence was the Tribunal’s observation that, after he was made redundant in December 1998, the applicant did not do anything to pursue his concerns about the hospital’s practices [CB143.10-144.10]. This matter was also put to the applicant at the hearing. In its decision, the Tribunal stated [CB 139.1] that:
I put to the Applicant that by his account he had not done anything since he had left the Department of Justice in December 1998. The Applicant said that he had gone to see the head of the hospital again after this attack [in March 2000] and had told him to forget about him.
23. Although the applicant did claim to have met with the head of the hospital after December 1998, this alleged meeting involved the applicant asking the head of the hospital to “forget about him”. On the applicant’s own evidence, the alleged meeting did not concern the hospital’s practices. Properly construed, therefore, the Tribunal’s observation was that the applicant had not undertaken any campaign of action to bring the hospital’s practices under public scrutiny.
24. In the circumstances, the Tribunal’s assessment of the applicant’s evidence was entirely open to it and discloses no error. In any event, it is not now for the Court to reassess the applicant’s evidence in the present judicial review proceeding.
25. Finally, even if the Tribunal’s reasons were somehow illogical (which the second respondent does not concede), that would not, of itself, amount to jurisdictional error. Moreover, there is no error of law, let alone jurisdictional error, in the Tribunal simply making a wrong finding of fact. The Tribunal does not commit an error of law merely because it finds facts wrongly or on a doubtful basis, or because it adopts unsound or questionable reasoning.
THE TRIBUNAL’S FINDING ABOUT THE ABSENCE OF ANY CONVENTION NEXUS
26. At paragraph 14 of the applicant’s contentions, It is asserted that:
The Tribunal said there was “no evidence” to support a finding that an [sic] harm would be for a Convention reason.
27. This is not what the Tribunal said. Rather, the Tribunal stated (CB 145.2-3] that:
…there is no evidence in the present case that the head of the hospital or other people to whom the Applicant voiced his concerns viewed the Applicant’s actions as having any political aspect.
28. This observation was plainly correct. There was no evidence presented by the applicant about whether or not the applicant’s complaints about the prison hospital were perceived by the head of the hospital or others to be political.
29. This observation was but one strand of the Tribunal’s reasoning towards its conclusion that the applicant’s claims did not disclose any Convention nexus. It was entirely appropriate for the Tribunal to consider how others perceived the applicant’s actions.
30. It cannot be said that the Tribunal misunderstood or failed to apply the Convention definition of “refugee”. In its decision, it cited the definition and referred to judicial and legislative interpretation of the definition [CB128.4-131.5]. The Tribunal’s decision does not disclose any departure from the definition or its interpretation by parliament and the courts.
31.Finally, the applicant contends at paragraph 17 of his contentions that:
…the Tribunal assumed that the exposure of corruption and persecution for political opinion were mutually exclusive when in truth the conduct of the persecutor may be both to avoid criminal sanctions and to repress dissent.
32.The Tribunal made no such assumption. The Tribunal merely noted [CB 145.2] that:
As I put to the Applicant, there is a difference between reporting a crime or reporting the corruption of one of your superiors, and being perceived as campaigning against corruption within the system.
33. This statement does not preclude any exposure of corruption from giving rise to persecution on the grounds of political opinion. Ultimately, it was necessary for the Tribunal to consider the motivation of the persecutor. And this is precisely what the Tribunal did.
34. It is therefore clear that the Tribunal considered whether or not the applicant’s actions were an expression of actual or imputed political opinion. It did not accept that they were. Such a question was a matter for the Tribunal. Its conclusions were open to it on the material before it and no error is demonstrated in the manner in which it approached its task. The Tribunal understood and applied the law correctly. It did not fail to consider or ask itself whether the particular conduct of the applicant amounted to an attitude having a political dimension. It considered whether a political opinion was manifested or apparent in the actions of the applicant. It did not accept that his actions were an expression of political opinion or that they would be so viewed by the head of the hospital or other Moldovan officials. These findings were a matter for the Tribunal.
It appears to me to be clear that the RRT dealt with the substantive claims of the applicant. The complaint of the applicant goes to the findings of fact of the RRT and the extent to which they accepted his specific claims with respect to the persecution that he may have suffered.
The RRT sets out at page 6 of the decision much of the evidence of the applicant that is relevant, stating:
The Applicant said that he had demanded that the hospital principal stop these practices. He said that he was ‘now subject to everyday persuasion that I must, since I was aware of all the above violations, live and work according to their set of rules’ and that if he resigned it would not be the end of his problems because ‘it would be easier to settle with me by murdering me’. He said that he had met with the Minister of Justice who had told him that he was aware of these practices but that he was not in a position to take any steps ‘since too high authority people were involved’.
The Applicant said that after this he had been threatened by ‘various strange people’ outside working hours, He said that they had told him that he had got involved in matters which were none of his business and that now he had to pay with his life for doing so. He said that on few occasions they had attempted to push him inside ‘some strange cars’ but he had always managed to escape. He said that he had constantly been receiving telephone calls telling him to get ready for death. He said that ‘[a] lot of times’ he had turned to the police asking for help and protection. The Applicant said that he had resigned from work but ‘that did not produce any effect’. He said that the police had been demanding that he should disclose the names of the people threatening him. He said that he had asked for a meeting with the hospital principal but the hospital principal had just laughed at him and had said, ‘You see what happens if you do not listen to me.’
When making it’s findings the RRT does not deal with this evidence specifically, simply stating:
As I indicated to the Applicant, I do not accept that the head of the hospital threatened him or instigated attacks on him after he was made redundant in December 1998. As I put to the Applicant, his own evidence does not suggest that the head of the hospital perceived him as a threat. The Applicant says that the head of the hospital just laughed at him. Moreover the Applicant does not suggest that he did anything to pursue his concerns about the practices at the hospital after he was made redundant in December 1998. Furthermore, the Applicant’s own behaviour does not suggest that he in fact felt threatened. As I noted, he continued to live at the same address in Moldova from December 1998 until September 2000. He said that he had not left Moldova earlier because he had not thought it was sufficiently serious. He suggested that if he had been beaten up earlier he would have left earlier. However the Applicant claims to have been attacked in March 2000 and he did not leave Moldova until after he claims he was attacked a second time in September 2000.
The RRT then drew the following conclusion:
I do not accept, therefore, that after the Applicant was made redundant in December 1998 he was threatened in person or by telephone. While I accept that the Applicant had the misfortune to be attacked by unknown persons on two occasions, in March 2000 and again in September 2000, as indicated in the documents he produced, I do not accept that these attacks were related to the allegations he had made against the head of the hospital. As I have said, I do not accept that the head of the hospital perceived the Applicant as a threat nor that the Applicant did anything after he was made redundant which would have led the head of the hospital to perceive him as a threat. I do not accept that, as the Applicant said in his further statement produced to the Tribunal, he left Moldova precipitately after a strange man telephoned him on 17 September 2000 and told him it was high time they settled with him. I do not accept that, as the Applicant claims, and as is reflected in the undated letter from the Applicant’s ex-wife produced to the Tribunal, strangers still come to his home asking about him nor that the Applicant’s ex-wife still receives telephone calls asking where he is and whether he has returned home.
I do not accept that the RRT misunderstood the nature of the claim that was made. It was clear from the material and the decision of the RRT that the RRT understood that the applicant claimed that he was threatened by the head of the hospital and risked persecution as a result of his complaints about corruption.
Ultimately it appears that the RRT has accepted some parts of the applicant’s evidence and rejected other parts. It appears that the RRT has placed great weight on a comment made by the applicant during the hearing that the head of the hospital ‘just laughed at him’ and the fact that the applicant did not pursue his concerns about corruption at the hospital after he was made redundant in 1998.
I have regard to the Comments of the High Court in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
It appears to me that it is not a failure to deal with a claim put by the applicant, but at best a less than perfect, addressing of the evidence: see Htun v Minister for Immigration (2001) 194 ALR 244.
Ultimately it appears to me that the RRT have not accepted the applicant’s version of events. The reference to the hospital principal laughing at the applicant was a part of his version of events of the occasion when he says that the principal of the hospital said to him ‘you see what happens if you do not listen to me’, set out above. It does not appear to me that the RRT has overlooked a central piece of evidence. Rather, the RRT have taken a view of that evidence which is adverse to the case of the applicant.
The findings of fact made by the RRT and the reasons for them are not irrational or without any foundation. It is well accepted that errors of fact, (or findings of fact which would not necessarily commend themselves to the Court’s determining judical review proceedings) are not of themselves a ground for judicial review: see Minister for Immigration v Rajalingam (1999) 93 FCR 220.
In this case, if the applicant does not succeed on his first ground with respect to the findings of fact he must necessarily fail regardless of the finding on the second ground.
In the circumstances I find that the applicant does not succeed on his first ground and I therefore dismiss the applicant’s application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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