MZWQV v Minister for Immigration
[2005] FMCA 511
•20 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQV v MINISTER FOR IMMIGRATION | [2005] FMCA 511 |
| MIGRATION – Review of Refugee Review Tribunal decision – protection – whether evidence to support finding of State’s ability to protect applicant. |
| Migration Act 1958 |
| A & Ors v Minister for Immigration (1999) 53 ALD 545 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | MZWQV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1154 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Barry B Moshel |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondents costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1154/2004
| MZWQV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Israel. He came to Australia on 6 January 1996 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 July 2002.
The applicant claims that he can not return to Israel as he fears persecution at the hands of criminal gangs (commonly referred to as ‘the Mafia’) owing to his previous involvement with these gangs, and his decision to cease such involvement.
On 12 July 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the applicant a protection visa. The applicant applied for review of that decision by the Refugee Review Tribunal (‘the RRT’) on 12 August 2002.
On 14 July 2004, the RRT affirmed the decision of the delegate and on 3 September 2004 the applicant applied for a judicial review of the decision of the RRT.
Background
The circumstances leading to the application are briefly summarised in the applicant’s contentions as follows:
8.The applicant until he left Israel had led a life of crime, with periods in jail, periods of detention, time in Japan when he belonged to an Israeli group of criminals, and then further time in Israel.
9.The applicant was previously a member of a group in which one of his brothers was a leading figure. The applicant however finally decided that he wished to change his manner of life and to escape from the other members of the Mafia who had threatened to kill him. It was impossible for him to leave the Mafia and his criminal life and remain in safety in Israel. His evidence at the Tribunal hearing was to the effect that the gangs have “gums and grenades and people are killed or wounded all the time”(CB 92.4).
10.A member of the applicant’s brother’s gang was shot in a restaurant at one time. On another occasion the applicant himself was attacked by four men with an axe and he still carries scars from wounds in his forehead and hands.
11.The applicant feared to return to Israel because members of rival gangs would take revenge upon him. He does not believe that it would be possible for him to get protection from the police. The small size of Israel would make it impossible for him to hide. “Everybody knows everybody, especially the Mafia and they have a lot of links, even the police”. (CB 93.2)
12.The applicant since his arrival in Australia 9 years prior to the Tribunals’ decision had changed his life. He had become involved with his Jewish faith and provided statutory declarations in support of this. Charges made against him under Australian law had all been dealt with and he was not facing any action by the Israeli authorities.
13.In brief, the applicant feared persecution by way of acts of revenge from members of rival gangs.
The RRT, in its findings, said:
The Tribunal accepts that the applicant fled Israel on his brother in law’s passport in order to avoid being harmed by members of criminal gangs. The Tribunal accepts that some time after his arrival in Australia the applicant came to regret his former criminal activities and became involved with charitable works of the Jewish community. The Tribunal accepts that the applicant has now reformed his character.
The RRT also accepted that there are criminal gangs operating in Israel, which are colloquially referred to as ‘the mafia’. In this regard the RRT referred to a report in Scotland on Sunday in March 2004. That report sets out concerns about the increase in activities of criminal gangs, and criticises members of the government and the police force for not taking sufficient steps to deal with this problem.
The RRT considers at some length whether or not the fear experienced by the applicant in this case has sufficient nexus to the convention grounds. The RRT ultimately concluded that former members of criminal gangs can constitute a particular social group and that the necessary nexus to a convention ground was established. On the hearing of this application the Minister took no issue with this finding or the finding that the applicant had reformed his character. As a result I proceed on the basis that such a finding has been made, without expressing a view of the appropriateness of it.
The RRT identified that if the alleged persecutor is a non state agent the failure of internal state protection will be relevant. The RRT stated as follows:
Where an individual asserts a well-founded fear, of persecution at the bands of persons other than the authorities of the country concerned, the question whether that country is able and willing to provide protection within the country is relevant to whether the fear is well founded (Re MIMA; Exparte Miah (2001) 179 ALR 238 at [64], per Gaudron J). In other words, the availability of protection in the country of nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests (A & Ors v MIMA (1999)53 ALD 545 at [38]). Whilst ‘absolute protection of an individual is not required, the protection must be effective: (MIMA v Thiyagarajah). “Protection” has been explained as meaning meaningful or adequate or effective protection that is sufficient to remove a real chance of persecution (Mahmood v MIMA [2000] FC4 179). In Khawa McHugh and Gummow JJ said that persecution was not constituted by a failure of protection as such, but rather by the ‘selective denial of a fundamental right otherwise enjoyed by nationals of the country concerned’.
Where persecution consists of two elements, the conduct of non State agents, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the State.
The RRT member went on to say:
In Khawar, Kirby J said
‘As a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision-makers are entitled to assume (unless the contrary is proved)that the state is capable within its jurisdiction of protecting an applicant.
The Full Court in A & Ors (1999) 53 ALD 545 explained that where the decision maker has a view based on available material that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of law designed to protect its nationals against harm of the sort feared, in the absence of evidence advanced by the claimant, the decision maker will be entitled to reject. the contention that the applicant is unable or unwilling for a Convention reason to avail him or herself of the protection of that country. The Court emphasised that there must be information or material available to the decision-maker from some source or sources on the issue of effective protection. Absolute protection is not required, as no State can protect all of its citizens all of the time from every harm.
In relation to the circumstances in Israel, the Tribunal has consulted a number of sources, but had found no evidence that the authorities in Israel selectively deny persons such as the applicant the rights accorded to other citizens.
The RRT then relied upon a state report of the United States Department of State in 2003 which outlines the basis of judicial and political structure in place in Israel.’
The RRT stated:
The ‘Scotland on Sunday’ press report cited earlier in this decision confirms that the Israeli authorities are aware of the violence between gangs, and have taken steps to deal with the problem.
The extent to which steps were actually implemented to effectively deal with the problem of criminal gangs is not at all clear from the Scotland on Sunday article, however the articles does make clear that the issues had reached the political agenda in a significant way. In the circumstances it is not an unreasonable conclusion for the RRT to draw that steps have been taken to deal with the problem.
The RRT received evidence from a witness to the effect that the police would not take steps to protect the applicant on the basis that the police would have the attitude that “it would be no great loss if something happened to him”. The witness also said that the police did not have enough resources to protect all citizens from harm. The RRT rejected this evidence. This is a finding of fact which is not open to judicial review.
The RRT also noted that:
The applicant did not seek the protection of law enforcement authorities prior to when he left Israel. At that time he had not renounced his former lifestyle.
Ultimately the RRT made the following finding:
The Tribunal finds, therefore, if the applicant were to request protection on return to Israel it would be forthcoming. The Tribunal is therefore not satisfied that there is any real chance of a discriminatory failure of the State authorities to provide protection to the applicant.
Grounds of review
The first ground for review was that the RRT misinterpreted the relevant law with respect to protection by the state. The ground is succinctly set out in the applicant’s Contentions of Fact and Law as follows:
28.…the Tribunal erred in interpreting the relevant law by regarding the critical and sufficient question whether there would be a discriminatory failure of protection by the State. It is clear that an applicant must show well-founded fear of persecution for a Convention reason. In the present case the nexus to the Convention was found by the Tribunal to have been established. All that remained was to consider whether there was sell-founded fear of persecution by failure of protection as a matter of fact. Once the Tribunal was satisfied that the harm feared would be inflicted for a Convention reason, it was no longer necessary for the applicant to show that the failure of the State to protect him would be a failure motivated for a Convention reason also. Although the Tribunal correctly stated the legal test (CB 101.6-101.8), it is clear from the Tribunal’s actual focus on the issue of discriminatory failure of State protection that the Tribunal has not applied the correct legal test.
29.For this reason the Tribunal has fallen into jurisdictional error, and has done so in a question critical to the making of the decision. For this reason the decision should be set aside.
In this case there is an almost complete absence of evidence as to the level of protection that would be offered by the state of Israel to a person in the position of the applicant. There is evidence that there has been a problem with criminal gangs, which has become a significant political issue (the Scotland on Sunday report). There is also evidence that the state of Israel operates as a modern democracy subject to the rule of law with a independent judiciary and modern legal system which adheres to such fundamental principles as a prohibition on arbitrary arrest, presumption of innocence until proof of guilt, being safeguards of rights to writ of habeas corpus, a right to representation by counsel at the public defenders office and public trials (save for matters involving security or where the interests of the parties are best served by privacy).
It is clear that the law requires the RRT to first determine whether or not the state is capable of offering protection, and if so whether the state would discriminate in the provision of such protection. In this case there is no express finding by the RRT that the state was capable of offering appropriate protection, nor any finding that such protection was not available. It is argued by counsel for the respondent that such a proposition is implicit in the findings of the RRT.
On reading the reasons of the RRT on pages 17 and 18 as a whole it appears clear that the RRT member was conveying the following propositions and findings:
a)Where a country has an effective judicial and law enforcement agencies (in the sense described in A & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 53 ALD 545) there needed to be some evidence of the lack of effective protection.
b)The state of Israel does appear to have an effective judicial and law enforcement regime.
c)The RRT rejected the only evidence to the contrary.
d)The applicant did not seek protection from the law enforcement agencies before leaving Israel and was therefore unable to provide direct evidence of a denial of protection, or inability to protect.
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 (at 272) that:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
I am of the view that the substance of the RRT’s decision is that they accepted that the state of Israel would provide protection of the type that is generally accorded by a country with an effective judicial and law enforcement system, and that it rejected the evidence to the contrary. This left it without evidence by which it would be satisfied that a modern state, in this case Israel, would be unable to protect the applicant.
The RRT then considered the question of whether the state of Israel would be likely to be discriminatory in that protection and similarly rejected that contention.
In the circumstances I do not find that an error that is judicially reviewable has been demonstrated under this ground.
The applicant also argued that the RRT fell into error because it imposed a requirement that the applicant request protection and be refused it before the applicant could establish that he could not be protected.
To the extent that the applicant relied upon evidence of the witness that if he had sought protection it would be denied, this was rejected.
It was proper for the RRT to recount the basic facts that the applicant had not sought protection from law enforcement authorities, as it is common for the best evidence on an issue of denial of protection to be that of an applicant who has sought protection and had it denied. The fact that the RRT have recounted this factual material does not, in my view, show that the RRT has elevated a factual inquiry to an additional and inappropriate test for the applicant to meet.
The applicant’s application was not refused on the basis that he had failed to request protection: indeed, the RRT ultimately concluded that if he were to request protection it would be forthcoming.
In the circumstances I do not find that this is a basis for judicial review.
The applicant argues that there is no evidence to support the RRT’s finding that if the applicant were to request protection on return to Israel that it would be forthcoming. The only basis from which it appears the RRT could have made such a finding is an assumption that such protection would be forthcoming, in reliance upon the nature of the legal system as described in the United States Department of State Report for 2003. In the context of the comments in the Full Court in A & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 53 ALD 545 such limited evidence could support the findings of the RRT. In any event there was no evidence accepted by the RRT that the applicant would be denied protection: the applicant’s witness was rejected, and the applicant had not ever been denied protection.
Ultimately it appears to me that the finding as expressed is a finding of fact not beyond the evidence that was realistically available to the RRT.
If successful the applicant sought to have the matter returned to the same RRT member in order to answer the question: ‘Are you satisfied that there is not effective protection available to the applicant from the state’. In the circumstances the application was not successful. In any event it appears that in light of Minister for Immigration v Wang [2003] HCA 11 there is no proper basis for such an order.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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