MZWRD v Minister for Immigration
[2005] FMCA 760
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWRD v MINISTER FOR IMMIGRATION | [2005] FMCA 760 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant resiled from previous claims – opportunity to comment on adverse information – merits review – real concern due to lack of suitable employment – no jurisdictional error – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), sections 36, 65, 91R, 422B, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | MZWRD |
| Respondent: | THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1172/2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 10 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2005 |
REPRESENTATION
| Advocate for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The applicant be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLG 1172 of 2004
| MZWRD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 16 July 2004 and handed down on
6 August 2004.
The applicant is a citizen of India and of the Muslim faith. He arrived in Australia on 14 November 2003 on a business visa. On 23 December 2003 he applied for a protection visa. This application was refused by a delegate of the Minister on 20 February 2004. On 25 March 2004 the applicant lodged an application for review with the Tribunal.
The Tribunal hearing was held on 28 June 2004, at which the applicant attended and gave oral evidence. As I have already stated the Tribunal affirmed the delegate's decision not to grant a protection visa on
6 August 2004 and handed its decision down on 16 July 2004.
Claims before the Department and the Tribunal
The applicant claimed he left India because he feared the police and the right wing Hindu organisation, the Rashtriya Swayamsevak Sangh (RSS). He feared harm from both groups and that the police would falsely charge him and imprison him.
He was trained as a mechanical engineer but found it hard to get a job because he is Muslim. He ended up working as a salesman in a shop in the Bazaar in Nagor, Tamil Nadu.
In his protection visa application the applicant stated that he joined the Tamil Nadu Muslim Munnetra Kazaham (TMMK) in India. He claimed that the TMMK branch and library in his village had been set alight by the RSS members. Afterwards members of the RSS came looking for the applicant and other members of the TMMK. He then claimed that he was taken away and severely beaten, after which he had to sign a false confession that he had assaulted the local RSS secretary, Mr Sangar.
However, at the Tribunal hearing the applicant resiled from most of these claims and said that his lawyer must have got the facts wrong when he was translating the applicant's statement. He said Mr Sangar had never had any animosity towards him and indeed he had no connection with him.
The applicant stated that he had left India because he could not find suitable employment for the level of education he had obtained.
The Tribunal also had asked the applicant when he joined the TMMK. He stated that he never joined the TMMK as such but had friends working for it. He had helped by providing funds and other aid to people following riots. In response to the Tribunal, the applicant said that he did not help in any other way.
The applicant did state that Mr Sangar was assaulted but no one knew who did it. At a later stage he also said that someone had been charged for the assault on Mr Sangar. The applicant had feared that as a Muslim he would be arrested and falsely charged. That was why he went to Chennai and then Australia. He said that the police would just turn up on one’s doorstep and take people away without warning. He and his parents had feared that might happen to him.
During the Tribunal hearing the applicant resiled from a number of his earlier claims. As a consequence the Tribunal put to the applicant that it understood his fear of returning to India to be because of his belief that the RSS would come after him because of the assault on Mr Sangar, and because of his difficulty in finding employment commensurate with his educational skills. He agreed that this was correct.
Tribunal decision
The Tribunal referred to the relevant legislative provisions and applicable legal principles. It provided some detail on the claims made by the applicant in his application for a protection visa, his application for merits review, and in the oral evidence to the Tribunal on 28 June 2004. It then reviewed some of the independent country information.
The important points in the Tribunal's decision are accurately summarised in the respondent's submissions at paragraphs 16 to 21:
16.At the hearing, the applicant contradicted many of the claims made in his written application. On the basis of the Applicant's oral evidence, the RRT made the following findings:
(a)the Applicant was not a member of the TMMK and had provided assistance to the TMMK on very limited occasions;
(b)the Applicant did not have a real chance of persecution from Mr Sangar because of his role in converting Dalits;
(c)the Applicant's house was not damaged and the R.R.S. did not come looking for the Applicant;
(d)the Applicant was not taken in by the police, beaten and forced to make a confession stating that he attacked Mr Sangar.
17.The RRT did not accept that the police were looking for the Applicant, noting that the Applicant had given oral evidence that the police were not specifically looking for him but for people in the movement: CB 72. The RRT further found that the Applicant had given contradictory evidence regarding his time in Chennai, and did not accept that the Applicant was living in Chennai because he feared the police were after him: CB 72.
18.In summary, the RRT found that the Applicant was not persecuted by the police because of his TMMK membership or because he was Muslim, and that the Applicant did not face a real chance of persecution from the police for a Convention reason because of the assault on Mr Sangar: CB 73.
19.The RRT then reviewed the Applicant's claim to fear persecution by the RSS, and did not accept that the Applicant would be of interest to Mr Sangar or his group given the Applicant's extremely low level profile and the fact that the Applicant had stated that he and Mr Sangar had no connection: CB 73. The RRT was satisfied that the Applicant had never experienced any problems with the RRS in the past for reasons of his race, religion, political opinion or any other Convention reason and was further satisfied that there was not a real chance of the Applicant being persecuted by the RSS now or in the reasonably foreseeable future: CB 74.
20.The RRT considered the Applicant's claim that he could not get suitable employment for the level of education he has obtained. The RRT accepted that the Applicant had tried unsuccessfully to find work within his field of expertise, but noted that the Applicant had been able to work as a salesman while looking for more suitable employment: CB 74. The RRT found that the Applicant was not denied a capacity to earn a livelihood of any kind, and did not accept that the Applicant's inability to find work within his chosen field constituted serious harm.
21.The RRT concluded that the Applicant's fear of persecution was not well-founded within the meaning of the Convention, and affirmed the decision of the Minister's delegate not to grant a protection visa.
Consideration
The application filed on 9 September 2004 purports to set out one ground of review with four sets of particulars. I will treat each of the particulars as a separate ground for the purposes of my decision.
First ground
The first ground asserts the Tribunal fell into jurisdictional error in that:
The Tribunal accepted that I was subject to harassment and discrimination because I was a Muslim but failed in its task of cumulatively assessing my claim to determine whether I was persecuted for convention reasons.
This ground falls at the first hurdle as the applicant misunderstands the findings of the Tribunal. At no point did the Tribunal accept that the applicant was subjected to harassment and discrimination because he was a Muslim.
The closest the Tribunal came to such a finding is at Court Book 74 where the Tribunal said:
The Tribunal is unable to determine whether the reason why the applicant was not successful for these positions was because of his Muslim religion or for other reason such as strong competition from more experienced and suitable candidates.
The premise therefore, on which this particular ground is based is false. This ground must be rejected.
Second ground
In the second ground the applicant claimed that the Tribunal fell into jurisdictional error because:
The Tribunal has failed to understand the deeper significance of the applicant's claim. The tribunal failed to discuss the relevant country information with the applicant and how that information likely to be the reason or the part of the reason for the refusal of the application. Consequently, the tribunal has failed to undertake its mandated task of correctly interpreting sections 36, 65 and 424A of the Act.
The Tribunal's obligation to provide information, such as country information, to the applicant does not apply to information that is not specifically about the applicant or another person but is just about a class of persons of which the applicant or other person is a member. This follows from section 424A(3)(a) of the Migration Act 1958 (Cth) (the Act) (see the Full Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
Furthermore it is clear from the reasons of the Tribunal, in particular in its dealing with oral evidence that it specifically gave the applicant an opportunity to comment on various pieces of country information. This included country information about the government of Tamil Nadu's support for minority groups, the right to work that is set out in the Indian Constitution, and that the TMMK have taken a strong stance against violence.
Section 422B of the Act excludes any obligation under common law to give the applicant an opportunity to comment on adverse information contained in documents, such as those in independent country information.
The second ground must also be rejected.
Third and fourth grounds
The third and fourth grounds are as follows:
The tribunal erred in determining that I had not political profile nor subject to persecution by the RSS.
The tribunal erred in finding denial of employment due to my race and political opinion is not amount to serious harm equivalent to persecution.
The third ground and to some extent the fourth ground, clearly invite the Court to engage in merits review of the Tribunal decision - that is, to second guess the findings of fact of the Tribunal. I pointed out to the applicant at the hearing that this is something which the Court is not entitled to do.
The fourth ground refers to denial of employment due to “race and political opinion”. The Tribunal did consider the employment claim which was principally concerned with the applicant’s “identity as a Muslim”. Its reasons are set out at Court Book 74.
Although the Tribunal accepted that the applicant was unable to find work in companies where he could use his mechanical engineering skills, it was not able to determine the reason why he was unsuccessful in this way. Having found that he was able to work as a salesman, it concluded that he was not denied a capacity to earn a livelihood of any kind. This did not mean that the applicant's inability to find work within his chosen field constituted serious harm.
The Tribunal noted that the applicant was not denied access to any employment for a Convention reason. It was satisfied that the applicant did not face a real chance of being persecuted by being denied the capacity to earn a livelihood because he was a Muslim, or for any other Convention reason.
In my view the Tribunal applied the correct test, as set out in section 91R(1)(b) of the Act, which requires that persecution must involve serious harm to the person. None of the findings of the Tribunal in relation to unemployment fall within the non-exhaustive list of instances of serious harm set out in section 91R(2) of the Act.
It is clear from the submissions made by the applicant at the hearing in this Court that his real concern relates to his failure to obtain employment allowing him to use his mechanical engineering expertise and skills.
Indeed it appeared that the applicant was unaware of all the other claims set out in his application for review. They appear to have been drafted by someone else without adequate consultation with the applicant.
In any event none of them present viable grounds of review amounting to jurisdictional error. As I have already indicated the applicant's concerns in relation to employment really amount to an attempt by him to overturn the Tribunal's findings of facts with which he disagrees. There is no substance in grounds three or four.
Conclusions
The applicant's real concern relates to his lack of employment opportunities as a mechanical engineer. From the oral submissions presented by the applicant, his real dispute was with the fact finding of the Tribunal.
Like many others - and this is understandable - he misunderstood the role of this Court. When I invited him at the hearing to put to me anything that might assist me in identifying a legal error, he was unable to expand upon his application, apart from reiterating his dispute with the findings of fact made by the Tribunal.
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
I accept that the findings of fact made by the Tribunal were reasonably open to it on the material before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act and to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Zhan Chiam
Date: 28 June 2005
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