MZWYM v Minister for Immigration
[2007] FMCA 74
•30 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWYM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 74 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, ss.91R, 424A |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435 |
| Applicant: | MZWYM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 736 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 23 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 736 of 2006
| MZWYM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, judicial review is sought of a decision of the Refugee Review Tribunal (the Tribunal) dated 19 April 2006. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa.
The Applicant is a citizen of Malaysia who arrived in Australia on 25 March 2004 on a visitor visa. She then made application to the First Respondent for a protection visa on 6 May 2004. A delegate of the First Respondent refused to grant the protection visa, and on 21 July 2004 the Applicant applied to a differently constituted Tribunal for review of that decision. On 16 February 2005 the First Tribunal affirmed the delegate's decision. The Applicant then applied to the Federal Magistrates Court for review of that decision, and on 6 December 2005 the court made orders remitting the matter to a differently constituted Tribunal for reconsideration. Essentially this occurred on the grounds that the First Tribunal had not provided the Applicant with an invitation to comment on inconsistencies between the Applicant's various accounts of her circumstances.
The decision which is relevant on judicial review before this court is therefore a Second Tribunal decision by a differently constituted Tribunal which, as indicated in a decision dated 19 April 2006, affirmed the delegate's decision not to grant a protection visa.
The Applicant's claim
The Applicant is a 27‑year‑old single Hindu Indian woman. Her claims before the Tribunal were based upon a well-founded fear of persecution by reason of her race and religious belief and/or by reason of her membership of a particular social group. The Applicant made a number of claims in her application for a protection visa (Court Book pp.18‑21). Those claims, I am satisfied, are summarised as follows:
·The Applicant became friendly with a Muslim man and developed a clandestine marital relationship.
·Her partner was willing to become a Hindu and marry under Hindu tradition.
·Her partner's parents and the Applicant's employer (a hotel), upon discovering the Applicant's intentions to marry under a Hindu tradition, refused the Applicant leave and reported the matter to the police and religious officials.
·On 2 March 2004 the couple were arrested by police from the hotel and taken to a police station. The Applicant's partner was assaulted in the Applicant's presence and directed by the police to end the affair.
·At the behest of the authorities, the Applicant's partner slapped the Applicant and spat on her face and told her he would end the relationship unless the Applicant became a Muslim.
·The Applicant claimed to be humiliated and threatened with indecent assault by the police, and the police imprisoned her for two days, after which she was released on payment of a bribe.
·The Applicant lost her job and ended the relationship with her partner by reason of her ethnicity and religion.
·Since her release, religious officials made frequent visits to the Applicant's house and made her life unbearable.
·The Applicant was threatened with charges including conversion of her boyfriend to Hinduism.
·The Applicant fears the authorities will not protect her "because they will not allow a Muslim to become a non-Muslim" (Court Book p.21).
The claims in the application were referred to by the Tribunal, which then referred to the Applicant giving oral evidence on 27 February 2006. During the course of the hearing, the Tribunal asked the Applicant a number of questions including why she left Malaysia and why she feared returning there. The following is relevant:
“The Tribunal asked the applicant the reason why she left Malaysia and why she feared returning there. The applicant stated she had a few reasons for leaving Malaysia. The first was her love affair. As a result of this affair a few other problems came up. She did not like to stay there because of the difficulties and problems which hounded her mind so she decided to leave. The Tribunal asked the applicant about her relationship or love affair. She stated that her boyfriend was a Muslim. When they were working at the Crown Princess they met. The Tribunal asked the applicant when she became friendly with her boyfriend. She stated since she joined the Crown Princess they had a normal friendly relationship. After one year her boyfriend to her he loved her. The Tribunal asked the applicant what her boyfriend did at the hotel. She stated he was an artist there. He was responsible for function backdrops, ice cuttings and decorations. The Tribunal asked the applicant when their relationship begin. She stated she could not exactly but it was approximately a year after she joined the Crown Princess. The Tribunal asked the applicant what they would do together. The applicant stated when her boyfriend was doing backdrops she would go and observe. Whenever she was free she would go and see him doing drawings and other work. The Tribunal asked the applicant if they ever went out together. She stated yes but not quite often. The would sometimes go for dinner and go shopping. They would see each other at least 5 times a week because they worked next each other. Her office was next to his office. They saw each other mostly at work. The Tribunal asked the applicant if her family was aware of their relationship. She stated her family knew they were friends but did not know they had a love affair between them. The Tribunal asked the applicant if her boyfriend’s family knew about them. She stated they did not know in the beginning but a few months after they decided to get married they came to know.
The Tribunal asked the applicant when they decided to get married. The applicant stated it was after one year. They had been working together in the same hotel and were friends for a year. It was then she learnt her boyfriend was in love with her and six or seven months later they decided to marry. She thought it was in early 2004. Her boyfriend proposed. The Tribunal asked the applicant what happened after they decided to get married. The applicant stated because her boyfriend was Muslim if they were to get married she would have to convert to Islam or her boyfriend change his religion but there was no chance in Malaysia for her boyfriend to convert. However her boyfriend said he would convert and he told her he would look after the mater and the process of conversion. The applicant stated 2 to 3 months after that they were to go and register their marriage but her boyfriend’s mother came to learn of it. When his parents came to know they were both caught. The Tribunal asked the applicant what happened. On 2 March 2004 she and her boyfriend had decided to go for lunch and they were leaving the car park when her boyfriend’s parents, police and the Department of Islamic Religious officials came. They took her and her boyfriend to the police station and the police started interrogating the both of them. During the interrogation his parents came to know their decision to get married. The police asked if they fell in love with each other and they said yes. They asked her boyfriend if he wanted to convert to Hinduism and he said yes. Her boyfriend’s parents did not agree. She was then asked if she had asked him to change his religion but she told them she had not and her boyfriend had volunteered to do so. Her boyfriend’s mother said it would never happen and started scolding him. Her boyfriend remained adamant he would marry her and convert his religion. The police officer then asked her why she could not convert and she told him she was a Hindu and could not change her religion. She told them it was her boyfriend who had proposed and decided to change his religion and they should let him do what he wanted. The applicant stated at the same time her boyfriend’s parents were scolding him and telling him it would never happen. They asked him if he had a girl from their own religion. Her boyfriend’s mother scolded her and questioned whether she had another boy. She stated her boyfriend’s uncle then asked his parents to take him away. Her boyfriend asked for her to be released as well but the police did not agree and his parents would not allow her to go with them. Her boyfriend’s uncle then came up to her and told her to stop or there would be a lot of problems. She told her boydriend’s uncle they bothy willingly entered into the affair and her boyfriend was prepared to convert. She stated her boyfriend’s uncle refused and then pushed her into the lock up. He threatened if she did not give up her boyfriend a case would filed against her for trying to convert her boyfriend. The applicant stated she was detained for 2 days before her friends came and released her. Her boyfriend’s uncle told her friends he was going to file a case against her saying she forced her boyfriend to convert to Hinduism but her friends bailed her out. The applicant explained her boyfriend’s uncle was a policeman. She stated after she was released she went home. Her boyfriend’s uncle told her she would receive a letter and would have to appear in court but as long as she was there no letter came. She stated for a period of 2 -3 weeks she was that was being observed by religious officials. She did not receive any calls or have any contact with her boyfriend. Her friends advised her to leave until the problems were over so she decided to come to Australia.” (sic)
(Court Book pp.108-109)
Significantly, in dealing with the claims the Tribunal also asked the Applicant if she had ever experienced "any difficulty in Malaysia because of her race or religion prior to this incident". The Applicant stated, "No." Reference was then made to the Applicant obtaining a passport.
The Tribunal then explored what appeared to be different versions provided in the claim set out earlier in this judgment, and answers to questions by the Tribunal at the hearing. Specifically, reference was made to her employer becoming aware of the planned marriage after the Applicant had been arrested rather than before the arrest. Further, that her partner's uncle, a police officer, was the one who pushed and slapped her, and not her partner as claimed in the claim form. At the hearing it was noted that the Applicant stated that her partner did not slap her or spit in her face, and she simply did not remember putting that in her statement. Rather than remembering being charged with an offence, she recalls signing a statement. She told the Tribunal she was monitored or observed by religious officials following her arrest rather than receiving visits to her home, as claimed in the application. Although in her application she claimed to have ended the relationship, she told the Tribunal she had further contact with her partner and wished the relationship to continue.
Apart from the evidence at the hearing, the Tribunal then by letter dated 24 March 2006 invited the Applicant to comment on apparent inconsistencies in her claims (Court Book pp.96-97). That request resulted in further information concerning the claims, and specifically, in a letter dated 18 April 2006 (Court Book pp.98-99), the Applicant relevantly stated:
"• I believed that my former employer has refused leave to me and reported the arrangement of my marriage to the authorities when he realized that I intend to marry a Muslim not in accordance with the Islamic traditions. I also aware the vehement opposition of my boy friend’s family and I believed that they too made similar complaint to the Police and religious authorities. I just can not understand what the inconsistency is all about as I can not recall the Police telling me specifically as to who made the complaint to them, which is entirely consistent with how the police and other authorities conduct their investigation against a member of an ethnic minority Hindu single woman in Malaysia in issues such as intend marriage against their belief.
• I was slapped, spited and humiliated by many including my boyfriend and it was a traumatic experience and I was totally frightened and numbed. It is not easy for me to revisit the whole incident now and re call each and every incident correctly with the minuet details. Please put my self in your shoe- A poor single Hindu woman surrounded by a hostile Police and Muslim fundamentalists basically accusing me of some thing closer to Blasphemy at a Police in Malaysia.” (sic)
The Tribunal decision
The Tribunal accepted the Applicant was a citizen of Malaysia and may have been in a relationship with a Malay Muslim man who she had met at work, and that they had wished to be married. It further accepted that the partner's parents learned of the plans to marry and opposed the plans. Her partner's parents did not want him to marry outside the Muslim faith or to convert to Hinduism. Significantly, the Tribunal then made the following finding:
“The Tribunal accepts the applicant and her boyfriend may have been taken to the police station by her boyfriend’s parents and his uncle, who was a police officer, where they were questioned by them about the nature of their relations and their intentions. The Tribunal does not accept the questioning of the applicant and her boyfriend at the police station was an act instituted by the authorities given on the evidence provided by the applicant, no other police officers were involved. Rather it was the applicant’s boyfriend’s family using her boyfriend’s uncle’s position to pressure the applicant and her boyfriend to end their relationship. The Tribunal notes the applicant provided inconsistent evidence in regard to what actually occurred during the incident on 2 March 2004 when her and her boyfriend were taken to the police station. In her statement the applicant initially claimed her employer had refused her leave and contacted the authorities when they discovered their intention to marry. There was no mention of the applicant’s boyfriend’s parents or uncle or the religious official being involved. /similarly in the interview with the Department, the applicant stated when she sought leave from her employer to arrange the wedding, management reported the matter to police. However at the hearing with the first Tribunal and this Tribunal the applicant claimed the incident occurred as a result of her boyfriend’s family opposition and it was his family who had made a complaint to the police and initiated the investigation. The Tribunal has taken into consideration the applicant’s response to the Tribunal’s s 424A letter, dated 18 April 2006, which put this inconsistency to her for comment. However it finds the applicant’s explanation does not address the Tribunal concerns as she claimed in this response to believe both her employer and her boyfriend’s parents made complaints to the police. The applicant has provided no further information in regard to the fact there was no mention of any involvement of her boyfriend’s parents or uncle in the arrest of her and her boyfriend in her initial statement. The Tribunal finds the inconsistency in the applicant’s evidence as to how she and her boyfriend ended up at the police station, further evidence she was not of interest to the authorities but subject to the condemnation of her boyfriend’s family.”
(Court Book p.117)
It is evident from that extract and other findings that the Tribunal did not accept that the questioning at the police station was instituted by the authorities, or that the Applicant was of interest to law enforcement authorities or religious authorities.
The Tribunal further made findings that it did not accept the Applicant was detained for two days at the police station, "Given the Tribunal is satisfied the incident was orchestrated by her boyfriend's family and not the authorities, and she was not charges with any offence at any times..." (sic) (Court Book p.118). They did not accept the Applicant was charged with any criminal offence or pursued by religious officials.
The Tribunal did not accept that the Applicant had any further contact with her boyfriend since the incident at the police station, as a result of inconsistencies provided to the Tribunal and the statements in her claim. It did not accept that she lost her job as a result of her relationship, based upon evidence that she gave at the hearing that it was "known in the workplace that they were seeing each other" (Court Book p.120).
Significantly, the Tribunal accepted that Hindu single women may constitute a particular social group in Malaysia, but then found that "it is satisfied the trouble the Applicant experienced prior to her departure in Malaysia was not due to her membership of such a group" (Court Book p.120). It then found that, "Rather, the essential and significant reason for the problems she had with her boyfriend's family was because of her personal situation, that being her relationship with her Muslim boyfriend."
The Tribunal did not accept on the evidence before it that the Applicant faced a real chance of persecution if she returned to Malaysia because she is a Hindu single woman. In making that finding, it noted the Applicant’s evidence at the hearing set out earlier in this judgment that she had never experienced any difficulties in Malaysia because of her race or religion prior to this incident.
The Tribunal did not accept the Applicant suffered serious harm prior to her leaving Malaysia because of her relationship with a Malay Muslim male. The Tribunal concluded it was not satisfied the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Applicant's grounds
The First Respondent submits and I accept that the Applicant, who is unrepresented, has set out seven grounds in her application; and it is noted that particulars were not provided. The grounds are as follows:
“1.The Tribunal erred in finding that the questioning of the applicant at the Police station which includes beating and humiliation by Police Officer was not an act instituted by the Authorities.
2.The Tribunal erred in finding that the humiliation and the beating she endured and/or the termination of her employment was not covered by section 91R of the Migration Act 1958 to trigger protection obligation.
3.The Tribunal erred in finding that her response to the s.424A letter does not address the Tribunal’s concerns.
4.The Tribunal erred in to conclude that her relationship with her boy friend ended for good and there is no real chance of its resuming in the future.
5.The Tribunal has not assed her claim of persecution being a Hindu Single woman in Malaysia who attempted to convert a Muslim to Hindu faith in a country which openly discriminate against non-Muslims.
6.The tribunal has not assessed her claim of her membership of a particular social group of Hindu single woman in Malaysia while accepting her profile may fit her in to a particular social group.
7.The Tribunal had given additional weight to minor inconsistencies with out giving proper consideration to her overall claims and acted with a mind set not open to persuasion.”
Submissions
The Applicant, who is self-represented, was given the opportunity to consider the written contentions of the First Respondent and oral submissions. Unfortunately, the Applicant was not able to make any further detailed submissions apart from pointing out a concern she had in relation to the conduct of her former partner's uncle, who was a police officer. She disputed that he was acting in a private capacity but rather had the power from the government due to his position as a police officer. The Applicant otherwise challenged the Tribunal's findings concerning that incident at the police station.
The First Respondent relied upon written submissions. In dealing with grounds 1, 3 and 4 set out above, it was submitted, and I accept, that those grounds effectively seek to challenge factual findings made by the Tribunal. It was submitted that those findings were not amenable to judicial review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
In my view, those grounds clearly cannot be sustained, as the Applicant does impermissibly seek merit review.
My only concern was the finding that the questioning at the police station was "not an act instituted by the authorities". Whilst that was a factual finding reasonably open, one can have some considerable sympathy and understanding for the Applicant's plight when she was dealing with a relative of her partner, namely a police officer. From the Applicant's point of view, she may well have perceived that the Applicant's uncle was acting in an official capacity.
Perhaps at worst the conduct of the partner's uncle, if carried out in uniform and at police premises, could only be regarded as an abuse of authority although the conduct was undertaken in the context of a private family issue. Nevertheless, the factual findings made by the Tribunal, whilst perhaps not exploring that aspect of the claim, did not provide any proper base upon which the court is able to conclude that the factual findings were of a kind that would constitute jurisdictional error.
I am satisfied, as submitted by the First Respondent, that these grounds fail, as they relate to factual findings made by the Tribunal reasonably open to it and free of jurisdictional error.
In relation to ground 2, it was submitted that whether conduct is sufficiently grave to amount to "serious harm" pursuant to s.91R of the Migration Act 1958 (the Migration Act) is a question of fact and degree for the Tribunal (see VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435 at [28]). The First Respondent submitted that this ground is misconceived, as it ignores the findings made by the Tribunal where it found that the humiliation and beating did not occur as claimed. Therefore, whether that conduct amounted to "serious harm" does not arise, given that adverse finding.
Likewise, having not accepted the Applicant lost her job as a result of her relationship, it followed that this was also a factor, namely, cessation of employment, which could not then form the basis of a favourable decision or a finding of "serious harm" pursuant to s.91R of the Migration Act.
It was otherwise submitted the Tribunal directly articulated the legal framework within which the application fell for consideration, and gave due and proper consideration to the Applicant's evidence.
In my view, the submissions for the First Respondent in relation to ground 2 are correct. Unfortunately for the Applicant, the Tribunal has made significant adverse findings on crucial factual matters, which then means the Tribunal was not required to consider whether the claims which it had rejected could constitute "serious harm" for the purpose of s.91R of the Migration Act.
In relation to ground 5, the First Respondent notes the allegation that the Tribunal did not assess the claim of being persecuted by reason of being a Hindu single woman in Malaysia who attempted to convert a Muslim to Hindu faith in a country that openly discriminates against non‑Muslims. On the basis that this ground suggests the Tribunal misconstrued the claim and failed to consider it properly or at all, it was submitted it is misconceived the Tribunal it was submitted found the Applicant had not suffered serious harm, and therefore there was no attendant finding of persecution upon which a favourable decision could be founded. This was not a case where the Tribunal failed to properly characterise the claim, but rather rejected the claim and evidence in support of the claim provided by the Applicant.
It was submitted the Tribunal considered the issue of the particular social group set out earlier in this judgment, and its findings rejecting any claim of serious harm or that any harm was suffered by reason of the Applicant's race, religion, membership of a particular social group or even that the Applicant was unable to avail herself of the protection of Malaysian authorities, were findings open to the Tribunal in affirming the delegate's decision.
It is clear from the Tribunal's decision that it has properly identified the relevant social group and has otherwise properly considered its task. In my view, the First Respondent's submissions are correct, as the Tribunal's adverse finding meant that although it may have accepted the Applicant belonged to a particular social group, this did not mean that the Applicant could properly be regarded as a person who had suffered by reason of the membership of that particular social group.
Accordingly, the Tribunal having properly considered the issue as raised by the Applicant in a manner free of jurisdictional error means that this ground should fail.
In relation to ground 7, it was submitted that in this instance the Tribunal decision was not attended by actual or implied bias. It was submitted, and I accept, that a proper reading of the Tribunal's decision would not lead to a conclusion that a fair-minded lay observer could reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.
I accept, as submitted by the First Respondent, that there is no material or indeed submissions made in support of the ground, and that accordingly it should fail.
It is clear the Tribunal not only considered the claims but otherwise gave appropriate notice to the Applicant pursuant to s.424A of the Migration Act, allowing time for the Applicant to respond; and further, took the response into account. The response set out earlier in this judgment, in my view, is a relevant response which was given due and proper consideration by the Tribunal.
There is nothing in the Tribunal's reasoning which in my view would lead to a conclusion that this ground should be upheld. Accordingly, this ground should fail.
In conclusion, it follows for the reasons given the application should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 January 2007
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