MZWVQ v Minister for Immigration
[2005] FMCA 1607
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1607 |
| MIGRATION – Review of decision of RRT – whether the Tribunal did not consider or properly consider the claims raised by the applicant – whether the possibility of being charged and tried for the criminal offence of theft amounts to persecution – whether or not the Tribunal breached ss.418 and 424 of the Migration Act 1958. |
| Migration Act 1958, ss.36(65), 91R, 418, 424 |
| Applicant A101/2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 556 MZQAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 41 S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 |
| Applicant: | MZWVQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 20 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2005 |
REPRESENTATION
| Solicitor for the Applicant: | Mr T.A. Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondents: | Ms H. Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
The Refugee Review Tribunal be added nunc pro tunc as a Second Respondent.
IT IS DIRECTED THAT:
Pages 39 to 55 of the Court Book are to be removed from the Court Book forthwith.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG20 of 2005
| MZWVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application where the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 17 November 2004. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a protection visa.
In this application it is common ground that the applicant is a citizen of Malaysia. She arrived in Australia on 25 March 2004. The applicant was born in 1974 and is of Indian ethnicity and Hindu religion. When she arrived in Australia she did so on a visitor’s visa. She then lodged on 7 May 2004 an application for a protection visa. The application was refused by a delegate of the first respondent on 24 June 2004. The applicant then applied to the Tribunal for review of the delegate's decision and, as indicated earlier, in its decision dated 17 November 2004, though handed down on 10 December 2004, the Tribunal affirmed the delegate's decision to refuse to grant the protection visa.
Although the applicant filed in this Court an application on 10 January 2005, she otherwise relies upon an amended application filed in this Court on 10 May 2005 and, through her representative, has sought to rely upon contentions of fact and law, filed the same day. It is perhaps noteworthy that in this matter the claims made by the applicant appear to me to be set out adequately and, indeed, accurately in the Tribunal decision which appears to summarise the claims that accompanied the application form, together with other material provided by the applicant.
In her initial claim, the applicant stated the following which are, as I have indicated, summarised accurately in the Tribunal's decision under the heading ‘Claims and Evidence’:-
·She was born in the city of Perak in Malaysia in 1974.
·She belongs to the Indian ethnic group and is a Hindu by religion.
·She left Malaysia on 24 March 2004 and arrived in Australia on 25 March 2004. She has never previously travelled outside Malaysia.
·She is a citizen of that country.
·She left Malaysia because she was accused of stealing from the convenience store in which she worked. The store was owned by a Malay and the money was stolen by another Malay. The owner implicated her because she is a Hindu Tamil.
·She voted for the Keadilan Party in the last election and the owner is a supporter of the Barisan National Party.
·The police took her and forced her to make a confession to stealing money.
·As a Hindu Tamil she was discriminated against in the past in education and, as a result, she was unable to continue with her studies.
·Her employment was terminated on false charges.
·She was summoned to attend court but did not go to court for fear there was no one to protect her.
·She believes that she will be forced to accept guilt and imprisoned if she returns to Malaysia. This will happen because she is a single Hindu Tamil woman and because she voted for the Keadilan Party.
·She will not be protected by the authorities of Malaysia because of her race, religion and political opinion.
It is clear from the Tribunal's reasons that the applicant gave oral evidence to the Tribunal on 4 November 2004. It is further clear that in the course of the hearing a number of matters were put to the applicant by the Tribunal and the applicant responded. Essentially one of the significant issues raised against the backdrop of the claim that the applicant is a single Hindu Tamil woman and had voted for the Keadilan Party or circumstances surrounding the alleged theft. Specifically the Tribunal in reciting the exchange which occurred at the hearing with the applicant states the following at court book page 92:-
I put to the applicant that it appeared that what had happened to her had happened because there had been a theft at her workplace when she was present, and that there was no connection with her race, religion or ethnicity. The applicant replied that she had been suspected of the theft because she was of Indian origin, whereas the owner and her supervisor were Malays.
I put to the applicant that whilst being accused of stealing and being taken to the police station may have been distressing, it appeared that there would be no further action taken against her: for example, she had not been formally charged or detained for any lengthy period. She responded that about a week later she got a letter from her employer requesting that she again report to the police station.
I asked how the letter had arrived and whether she had the letter now. She said that she had gone to stay with a friend. She was afraid to remain at her place in case the police came. I asked her how she got the letter if she did not go back to her house. She said a friend staying in the same house telephoned her and told her about the letter. I put to the applicant that it seemed strange that her employer would send her such a letter. She then said it was the police who sent the letter. I said that if the police had wanted to question her again, it would be more likely that they would come to her house. She said that the police had come to the house looking for her. I asked her if she could provide the letter, this letter. She said that she had not brought it with her to Australia. I put to the applicant that I would have expected her to bring the letter with her as proof of her difficulties in Malaysia. She said that she did not think the letter would be of any help until after she came to Australia.
I asked the applicant when she made the decision to leave Malaysia, pointing out that her passport had been issued within days of the alleged theft. She said that this was only after the police were searching for her. I asked the applicant why she left Malaysia rather than move to some other area. She said she feared she would be blacklisted and unable to find another job, and that the police would find her.
After referring to that exchange, the Tribunal refers to further exchanges which took place between it and the applicant. Specifically the Tribunal goes on to state the following, at page 93 of the court book:-
I asked the applicant about her statement in her protection visa application about her membership of the Keadilan party, and how this was connected with her fears. She said that this was another reason why her employer accused her of the theft, because he was a supporter of the other party. I asked the applicant how her employer would know that she voted for a different party. She said they had discussed such things at work.
Thereafter the Tribunal refers to relevant country information. Under the heading “Finding and Reasons” the Tribunal makes a number of significant findings. Though I accept in the present case that, although there is not a direct finding in relation to credibility, there are findings by the Tribunal that the evidence of the applicant in relation to certain aspects of the claim was described as vague and contradictory and, according to the Tribunal, had changed when it pointed out what it describes as implausibility. By way of example of that process, the Tribunal states, for example at court book page 97:-
She initially said in her evidence that she received the letter from her employer and then said it was from the police. Her evidence about how she came to receive or know about the letter was particularly vague. I find it difficult to accept that the applicant would not consider seeking help from her family or legal advice if she had been pursued in this way, and believe that she would be charged with the theft and imprisoned. I consider it implausible that the applicant would not bring the letter with her to Australia when this was the alleged reason for leaving her country.
That extract demonstrates the serious reservations expressed by the Tribunal in relation to the reliability of the applicant's evidence concerning those matters and, indeed, other matters. It perhaps does not quite constitute a clear and direct finding that the applicant had lacked credibility entirely.
Significantly, however, in the findings and reasons, apart from finding and accepting that the applicant was born and lived in Malaysia her whole life and that she is Hindu of Indian Tamil ethnicity, the Tribunal further accepted that the applicant had been accused of theft of money from her workplace on 28 February 2004, and further accepted that she was questioned by the police in relation to the theft. Significantly, however, the Tribunal makes the following finding which appears at court book page 96:
I do not accept, however, that this was related in any way to her race, religion or political opinion, or that the treatment by police amounted to persecution.
After making that finding, the Tribunal then analyses in some further detail the events and circumstances surrounding the alleged theft. In further making its findings, the Tribunal refers to what it describes as a relevant authority in relation to the question of what may constitute a persecution. It had found that if the applicant returns to Malaysia, the worst that could happen is that she could be charged and tried for a criminal offence.
It then referred to the decision of Applicant A101/2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 556 and specifically recited a relevant extract of that judgment at court book page 97 which is set out as follows:-
It is well accepted that enforcement of a criminal law of general application does not ordinarily constitute persecution for the reason that enforcement of such a law does not ordinarily constitute discrimination: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258; Chen Shi Hai at 301. But as the qualifying word “ordinarily” suggests, that a law that is one of a general character does not for that reason negative the possibility that its enforcement or the manner of its enforcement is discriminatory. As the joint judgment in Chen Shi Hai observed (at [21]):
…general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination.
It is noted in passing that counsel for the applicant had referred this Court to a recent decision of the Full Court of the Federal Court in MZQAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 41. In that case I note from the headnote the following:
A law of general application that can be implemented or enforced in a discriminatory way can amount to persecution. Determining whether such discriminatory treatment is appropriate and adapted to achieving a legitimate objective of the country is a matter of judgment.
It is clear in that case that the court applied what the Court had stated in Applicant A101/2003 and, relevantly and significantly, had also applied the law referred to in the High Court decision of Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242. The Tribunal in this case, after simply reciting the authority of Finn J in the matter of Applicant A101/2003 then went on to state significantly the following:
The authorities cited above establish that an applicant for refugee status must also show that the persecution which he or she fears is, for one of the reasons enumerated in article 1(a)(2) of the Refugees Convention. This means that there would be persons fearing persecution who would not be able to gain asylum as refugees. Moreover, to satisfy article 1(a)(2) as qualified by section 91R(1)(a) of the Migration Act 1968, the Act, a convention, reason or reasons must constitute at least the essential and a significant reason for the persecution.
After making reference to the authorities, the Tribunal then makes what I would regard as a significant finding in this matter in the following terms which appears at court book page 98:
I do not accept that the applicant was or will be treated less favourably or discriminated against by the law enforcement authorities or any Convention reason. On the applicant's evidence, she was questioned about the theft only. No mention was made of her race, religion, or her claimed support for the Keadilan Party by police. I find that she was and will be treated no differently by the law enforcement authorities than any person suspected of a theft from their employer would be, and that any punishment imposed would not be unduly harsh for any Convention reason. It may be the case that her employer showed some personal animosity towards her on account of her Indian ethnicity, or her support for a different political party. However, she was dismissed from her employment because of the theft. Her race and/or religion did not prevent her from obtaining employment, and on the country information set out above, would not prevent her from obtaining employment if she returned to Malaysia
The Tribunal ultimately concluded that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.
In the amended application relied upon by the applicant, in seeking to argue that there was jurisdictional error, the following particulars are sub-joined to the sole ground, namely:
(a) the Tribunal failed in its mandated task in exploring the applicant's race and religion being a Tamil Hindu, coupled with her political opinion which resulted in her being accused of theft which resulted in persecution and led to her loss of employment;
(b) the Tribunal mis-applied, misinterpreted and/or misconstrued the term "refugee" because it failed to give proper and realistic consideration of the applicant's claim taken cumulatively and/or individually in contravention to sections 36(65) of the Migration Act;
(c) the Tribunal misinterpreted and misunderstood section 91R of the Migration Act;
(d) the Tribunal has confused and contradicted itself in its findings which amounts to jurisdictional error;
(e) there are breaches of section 418 and 424 of the Migration Act.
All of the particulars sub-joined to the grounds are relied upon and, though it is fair to conclude that (a), (b) and (c) were particularly emphasised during the course of submissions made for and on behalf of the applicant before this Court. During the course of submissions reference was made to authorities concerning jurisdictional error, including VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Full Court said at [16]:
16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.
Particular emphasis was placed upon the manner in which the claims were dealt with by the Tribunal, and at one point during submissions it was asserted that the claims had not been considered or, indeed, not properly identified by the Tribunal. Further criticism was made of the Tribunal and the use it made of the authorities referred to earlier and, in particular, the authority set out of Finn J from the case of Applicant A101/2003. In particular, the following sentence was the subject of some criticism where the Tribunal stated:
This means that there will be persons fearing persecution who would not be able to gain asylum as refugees.
Further criticism was made of the Tribunal's decision and, in particular, significant emphasis was placed upon the social group of the applicant which it was noted, and indeed conceded, appears at the very least to have been accurately recited by the Tribunal when considering the claims set out earlier in this judgment; in particular, the social group being single Hindu Tamil woman who had voted for the Keadilan Party.
It was submitted for and on behalf of the applicant that, accordingly, the Tribunal in this instance had failed to consider the claim as put and had otherwise misdirected itself in relation to the meaning of persecution, and reliance was otherwise placed upon the grounds or the particulars to the grounds set out earlier in this decision. The respondent has submitted that there is, indeed, no error in this case, no jurisdictional error, and that the Tribunal has considered the claims of the applicant and has done so free of error.
It perhaps is convenient to consider as discrete issues whether or not there has, indeed, in this case been any breach of the relevant provisions of the Migration Act 1958, namely ss.418 and 424. Although those matters were not pursued with great vigour, they remain part of the material. In my view, the first respondent's submissions in relation to each of those sections are correct. It is clear to me that there does not appear to be any breach of either ss.418 or 424. It is clear to me that in this case there is simply no evidence to support the proposition by the applicant that the Tribunal did not appear to have been in receipt of the documents that had been before the delegate.
Further, in fact, it is noted the Tribunal expressly claimed that it had regard to that material. I accept that in this case there is no reason to doubt the documents were before the delegate. Likewise, it seems to me there is no breach of s.424. Again, there is no reason, in my view, to conclude that in this instance the Tribunal has failed to consider information before the delegate. It is also clear in this case that, although that particular has been referred to, there is no further particulars provided and those two matters raised for and on behalf of the applicant should not succeed.
When one reads the Tribunal's reasons and considers the claims recited by the Tribunal, in my view, those claims are accurately recorded and, indeed, accurately reflect the claims which appear in the court book accompanying the application. After accurately reciting the claim, it seems to me that the Tribunal has correctly then assessed each of the claims in an appropriate manner. Specifically it is clear to me that the Tribunal has made a finding of fact reasonably open to it in that it has ultimately found that this is a case where there has not been persecution suffered by the applicant.
It was submitted for and on behalf of the respondent that the Tribunal, having made that significant finding of fact which I infer it is submitted was reasonably open to the Tribunal, that there is no longer a need for the Tribunal to then embark upon a further fact finding mission to consider whether or not persecution may be characterised as persecution for a convention reason.
Nevertheless, it is noteworthy that in any event the Tribunal does, in my view, in the passages referred to earlier in this judgment otherwise consider the issues which might be regarded as relevant to considering whether or not, indeed if there was persecution, that it was for a convention reason. Specifically the Tribunal refers to its questioning of the applicant about the issues raised by the applicant, makes specific findings about what had occurred with the authorities in relation to the allegation of theft, notes no mention was made of race, religion or claimed support of the Keadilan Party by the police.
It clearly, in those circumstances, does at least address that issue. Any criticism of its finding of fact made during the course of submissions is a criticism which cannot be a basis for judicial review or that there has been jurisdictional error. It may be that it is unlikely the police, arresting a person of the applicant's background, would be unlikely to refer to her race, religion or support of a political party but, nevertheless, a reference to those issues by the Tribunal does not of itself constitute, in my view, an error of law. Whether it made a wrong finding of fact or otherwise would not, as the authorities clearly indicate, justify this Court in holding that there has been a jurisdictional error of a kind that would permit judicial review.
In any event, I am satisfied on the material before me that in this instance the claims as put by the applicant were properly considered.
I can see no error in law in the way in which the Tribunal has then interpreted the authorities to which reference was made earlier and, in particular, it has accurately referred to the authority of Finn J in Applicant A101/2003 which, as I have indicated earlier, was applied in the recent Full Court Federal Court decision of MZQAP. The sentence which appears at page 98 of the Tribunal's decision which was recited earlier in this judgment where the Tribunal states, “This means that there will be persons fearing persecution who will not be able to gain asylum as refugees” does no more than make a statement arising from the authority. I do not see any tension between that statement and the reference to the passage from the judgment of Finn J or, indeed, the other authorities to which I have referred earlier. Accordingly, I do not see any error of law arising out of that statement. The Tribunal has then sought to conclude its fact finding mission by, in my view, drawing conclusions reasonably open to it free of any jurisdictional error.
It follows for those reasons the application as amended should be dismissed with costs. The orders of the Court are:-
(1)The Refugee Review Tribunal be added nunc pro tunc as a Second Respondent.
(2)The application as amended be dismissed.
(3)The Applicant shall pay the First Respondent's costs fixed in the sum of $6,500.00.
(4)It is directed that pages 39 to 55 of the court book be removed from the court book forthwith.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 October 2005
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