MZWVQ v Minister for Immigration and Multicultural Affairs

[2006] FCA 220

FEDERAL COURT OF AUSTRALIA

MZWVQ v Minister for Immigration and Multicultural Affairs [2006] FCA 220

MIGRATION – appeal – attempt to re-agitate factual findings by the tribunal – whether jurisdictional error

MZWVQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 1482 OF 2005

MERKEL J
14 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1482 OF 2005

BETWEEN:

MZWVQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

14 MARCH 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of and incidental to the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1482 OF 2005

BETWEEN:

MZWVQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MERKEL J
DATE:	14 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant, a citizen of Malaysia, applied for a protection visa claiming that she is a refugee as defined by Art 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (‘the Convention’).  Her application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal (‘the RRT’).  The appellant then applied unsuccessfully to the Federal Magistrates Court (‘the FMC’) to review the decision of the RRT.  She has now appealed to the Court against the dismissal by the FMC of her application for review.

2. Before the RRT, the appellant claimed to have a well-founded fear of persecution because she is a Hindu Tamil, a single woman and holds different political views to those of her employer.  The appellant claimed that she was falsely accused of stealing from her employer and had suffered discrimination in the course of her studies.  The RRT found that the appellant had been accused of stealing from her employer, but found that neither this nor any animosity from fellow students during her studies constituted persecution.  The RRT did not believe the appellant’s claim that police had visited her home or written to her asking her to attend at the police station in respect of the theft from her workplace.  Further, the RRT did not accept that any harm suffered by the appellant occurred for a Convention reason.

3. In relation to these issues, the RRT made the following findings:

   ‘I accept that the applicant was accused of a theft of money from her workplace on 28 February 2004, and that she was questioned by the police in regard to the theft.  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.
   …
   I do not accept the claim that the police subsequently visited her home, or wrote her a letter stating that she should attend the police station again.  Her evidence in this regard was vague and contradictory, and changed when I pointed out implausibility.  For example, she initially said in her evidence that she received a 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 believed that she would be charged with 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 her leaving the country.
   …
   While the accusation and subsequent questioning by the police may have been frightening, I do not consider that it constitutes persecution.  The applicant was not physically mistreated when in custody, and was released after a few hours questioning.  I consider this does not amount to serious harm as required by section 91R(b) of the Act.

   If the applicant returns to Malaysia, the worst that could happen is that she could be charged and tried for a criminal offence.  This also does not constitute persecution.
   …
   I do not accept that the applicant was or will be treated less favourably or discriminated against by the law enforcement authorities for 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.

   For the same reasons I do not consider that the applicant’s treatment in her nursing training, which was limited to some animosity from fellow employees, amounted to serious harm.

   I therefore am not satisfied that the applicant has a well founded fear of persecution for a Convention reason.’

4. The FMC rejected the appellant’s application for review of the decision of the RRT.  Many of the observations and findings that it made in its reasons for judgment are the subject of the current grounds of appeal.  In particular, the FMC regarded the RRT’s finding that the questioning of the appellant by the police was not related to her race, religion or political opinion as ‘a significant finding in this matter’.  Another part of the FMC’s decision relevant to the present appeal is the FMC’s statement that:

   ‘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 [women] who had voted for the Keadilan Party.’

   Ultimately, the FMC found that:

   ‘Any criticism of [the RRT’s] 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 that the police, arresting a person of the applicant’s background…would refer to her race, religion or support of a political party but, nevertheless, a reference to those issues by the Tribunal does not 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.’

   The FMC also noted that there were:

   ‘serious reservations expressed by the Tribunal in relation to the reliability of the applicant’s evidence concerning those matters and, indeed, other matters.’

5. The appellant’s notice of appeal sets out the following grounds of review:

   ‘(a)The learned Magistrate has essentially erred in saying that the finding of the Tribunal to the effect that “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” was a significant finding, which in fact it was not.  For not only did it betray an incorrect interpretation of the decision relied upon but it also failed to consider the applicant’s claims in the context of the convention.

   (b)The learned Magistrate erred in saying that the finding of the Tribunal as seen in paragraph 14 of the judgment was significant for the Tribunal to conclude that it was not satisfied that the applicant had a well founded fear [of] persecution for a convention reason.

   (c)The learned Magistrate erred in saying that the applicant’s claims as put by the applicant were properly considered (Paragraph 27 of the judgement) yet saying that 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 (Paragraph 19 of the judgment).

   (d)The learned Magistrate erred in finding that the applicant’s claims of a Single Hindu Tamil Woman with a political view as a supported of the Kedilan Party was properly considered.’

6. Written and oral submissions were made on behalf of the appellant.  In those submissions the appellant essentially sought to re-agitate matters of fact that were determined by the RRT, such as its finding that the implication of the appellant in the theft from her employer did not occur for a Convention reason.  Such a course is not permissible.  In my view, the findings made by the RRT were reasonably open to it on the evidence before it.  I have considered the decision of the RRT and have been unable to discern any jurisdictional error on its part.  In particular, I am not satisfied that there is any proper basis for the appellant’s contention that the RRT addressed the wrong question or failed to address the correct question.  The FMC carefully considered the RRT’s decision, and found that jurisdictional error had not been established.  I am not satisfied that any error was made by the RRT or the FMC.  The RRT was entitled to find, as it did, that the appellant did not suffer harm for a Convention reason and that any harm that she did suffer did not constitute persecution.  In the circumstances of the present case, those findings were dispositive of the appellant’s claim to be a refugee for the purposes of the Convention.

7. It follows that the appeal should be dismissed and the appellant should pay the respondents’ costs of and incidental to the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            14 March 2006

Counsel for the Appellant:	J Harkess
Solicitor for the Appellant:	Mano Associates
Counsel for the Respondent:	H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 March 2006
Date of Judgment:	14 March 2006