MZWZB v Minister for Immigration
[2006] FMCA 421
•30 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWZB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 421 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – whether failure to consider relevant material – whether breach by s.424A of Migration Act – whether finding not open on evidence – relevance of adverse finding relating to past persecution – whether Tribunal required to ‘speculate’ about future persecution when finding made that ‘past’ persecution has not occurred. |
| Migration Act 1958, s.91 |
| SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 80 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration & Ethnic Affairs (1997) 191 CLR 559 |
| Applicant: | MZWZB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 387 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 7 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms G.A. Costello |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 387 of 2005
| MZWZB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon a "further amended application for an order of review" filed 3 March 2006 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 23 February 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant the Applicant a protection visa.
The Applicant is a ‘Roma’ man and a citizen of Romania. He initially arrived in Australia on 25 December 2001 and returned to Romania on 20 March 2002. He returned to Australia on 31 July 2003 and applied for a protection visa on 11 September 2003. The application for a protection visa was refused by a delegate of the First Respondent in a decision dated 19 December 2003. The Applicant then lodged an application for review of the delegate's decision and by its decision dated 23 February 2005, the Tribunal affirmed the delegate's decision to refuse to grant a protection visa. The Applicant then made application for judicial review in this court.
The Applicant's further amended application raised a number of grounds. Those grounds are set out in the application as follows:
“1.1 The Tribunal feel into jurisdictional error in that it acted in breach of procedural fairness
Particulars
The Tribunal did not give an or any proper opportunity to the applicant to know and to respond to the possibility that ‘there may be many causes’ (CB 227.7) for the symptoms reported to the psychiatrist who stated that ‘This state has been brought about, and is perpetuated, by the victimization this person and his family have suffered in Rumania, and the uncertainties of his future,’ (CB 185.9), but the Tribunal was obliged pursuant to section 424A of the Act to give in writing particulars of the information to the applicant for comment, to explain why it was relevant to review, and to invite the applicant’s comments. It did not do so.
1.2 Further or in the alternate to Ground 1.1 herein, the Tribunal fell into jurisdictional error in that it acted of a statutory condition for the exercise of jurisdiction.
Particulars
The Tribunal did not give any or any proper opportunity to the applicant to know and to respond to information the Tribunal had concerning the possibility that ‘there may be many causes’ (CB 227.7) for the symptoms reported by the psychiatrist who stated that “This state has been brought about, and is perpetuated, by the victimization this person and his family have suffered in Romania, and the uncertainties of his future.’ (CB 185.9), but the Tribunal was obliged pursuant to section 424A of the Act to give in writing particulars of the information to the applicant for comment, to explain why it was relevant to the review, and to invite the applicant’s comments. It did not do so.
1.3 In the alternative to Ground 1.2 herein, the Tribunal’s decision was affected by and based on a finding not open to the Tribunal.
Particulars
The Tribunal was obliged pursuant to section 430(1)(d) of the Migration Act 1958 to ‘prepare a written statement that refers to the evidence or any other material on which the findings of fact were based’ but the Tribunal referred to no evidence from which it would have been open to the Tribunal to conclude that ‘there may be many causes’ (CB 227.7) for the symptoms reported by the psychiatrist who stated that ‘This stated has been brought about, and is perpetuated, by the victimization this person and his family have suffered in Romania, and the uncertainties of his future.’ (CB 185.9). It is to be inferred that the Tribunal had no evidence on which it could have founded this conclusion.”
The Applicant's claims
The Applicant claimed to have suffered what is described in the contentions filed on his behalf as ‘chronic discrimination’ and specific instances of injustice in Romania due to being a Gypsy, and therefore had a "well-founded fear of persecution for reason of race" within the meaning of the definition of a refugee under the Refugees Convention. He made specific claims that he had been harmed by the police and his house had been confiscated. He further claimed he was in danger because he had sought asylum in Australia.
He specifically made claims that he had been the victim of assault, unjust detention, interrogation and ill-treatment by the police and otherwise made reference to what is described as other continuing discrimination. That continuing discrimination appears to include name-calling and interception by police who would see him driving his car and would then interrogate him about the ownership of the car. He claimed in his application that:
“They would continually say I was a Gypsy and all we do is steal cars for parts.”
He further claimed that he was beaten, and referred to one instance where he was allegedly beaten and taken into a shop where he was allegedly tied to a pole until the police arrived. When the police arrived, he claimed they took him to the station and started beating him again to confess that he had stolen goods out of a shop. He claimed to fear ill-treatment by the authorities and also continuing discrimination should he return to Romania. He referred to harassment, discrimination, threats, violence and matters of that kind which would occur should he return to Romania.
The Tribunal's decision
The Tribunal made a number of significant adverse findings against the Applicant which I am satisfied have been accurately set out in the Respondent's contentions as follows:
“(a) The applicant was Roma, but was integrated with the Romanian population. He had received 13 years of school education, had always been employed, did not speak any Roma language, was not a member of any Roma tribe and did not identify with his Roma Cultural background [CB 222].
(b) There was no real chance the applicant would be persecuted in the reasonably foreseeable future for reasons of his membership of the Roma political party due to his low level of identification with the party, the low level of his activities with the party and the fact he had not been persecuted for this reason in the past [CB 222-223].
(c) The applicant’s passport had not been ripped up by authorities as claimed, and the Tribunal did not accept that the applicant had difficulty obtaining a passport or that Roma were unable to travel outside Romania [CB 223].
(d) The applicant’s house was not confiscated because he was Roma [CB 224].
(e) The applicant was not detained for two nights and beaten after police accused him of stealing a car and even if he was “somehow treated unkindly” by the police, this was an isolated incident with no ongoing consequences [224-225].
(f) The applicant was not taken to a police station after being falsely accused of shoplifting [CB 225].
(g) Even taken cumulatively, the applicant’s claims of harm by police did not amount to persecution [CB 225].
(h) The applicant’s wife was not harassed because the applicant left Romania and he did not return to Romania from Australia in 2002 due to threats to his wife [CB 225-226].
(i) The applicant would not be harmed on return to Romania because he had sought asylum in Australia [CB 226-227].
(j) It was far-fetched that Interpol would arrest him [CB 227].
(k) While the applicant showed features of a chronic, severe stress state/ adjustment disorder with anxious and depressive mood as diagnosed by a psychiatrist, this was not caused by persecution suffered in Romania [CB 227].
(l) The Tribunal accepted that the applicant may be discriminated against in the form of being called offensive names and perhaps being refused service in shops and restaurants. However, the Tribunal did not accept that this amounted to persecution within the meaning of section 91R(1)(b) [CB 228].”
It is also useful to set out an extract from the Tribunal’s decision which was the subject of a number of submissions in this application.
“The applicant had informed his psychiatrist that his wife was questioned as to why he was not in Romania. She was told that the police would get Interpol to arrest him if he did not return to Romania by Christmas. He told his psychiatrist that as a result of this she had been scared and left her assigned flat and give to live with friends. The Tribunal does not accept that the authorities in Romania have an interest in the applicant due to his failure to return to Romania. Due to the inconsistence in his evidence, the Tribunal does not accept that they are harassing his wife. Further, it is far fetched that the applicant could fear that Interpol would arrest him in Australia when he has not committed any sort of serious criminal offence for which Interpol’s help could be engaged.
Finally, the Tribunal has accepted that the applicant is of Roma ethnicity. The Tribunal must decide whether to accept that he has a real chance of persecution for reasons of his Roma ethnicity. The Tribunal accepts that the applicant is showing features of a chronic severe stress state/adjustment disorder with anxious and depressed mood as diagnosed by his psychiatrist. However there may be many causes for these symptoms and this does not lead to the conclusion that the applicant has been persecuted in Romania. The country information indicates that Roma are discriminated against and that some are persecuted in Romania. The Tribunal must consider whether the applicant as a well educated employed Roma faces a real chance of persecution. As already noted, the applicant was able to attend 13 years of education. This does not indicate that he suffered the discrimination that is often experienced by the Roma people in Romania who are refused the ability to go to school. Further, he had been in fulltime employment throughout his life in Romania. His claims regarding his work in Romania have been inconsistent. He has stated that he worked for gypsies in Romania which was why he was able to keep a steady job; his statements to his psychiatrist seem to indicate that he was discriminated at work and ostracised, which seems at odds with him working for members of his own ethnic group. Apart form the period when the applicant was in military service he has worked for the same company. The applicant was issued with a Roma ID card and was able to obtain a passport – apparently on 3 occasions. This indicates that he has the rights of a citizen in Romania. The applicant does not speak Roma and does not live in an area that is predominantly Roma. Although the Tribunal acknowledges that there is discrimination against the Roma people in Romania and that on occasions this discrimination amounts to persecution, this appears to relate to the Roma people who identify as Roma, who live in Roma ghettos and who carry out the traditional life of the Roma. The country information indicates that integrated Roma are not the subject of these types of persecutory acts. The Tribunal accepts that the applicant would be discriminated against in the form of being called offensive names and perhaps being refused service in shops and restaurants. However, the Tribunal does not accept that this would amount to persecution within the meaning of Section 91R(1)(b). The Tribunal finds that a Roma person in the applicant’s position would only face a remote chance of persecution in Romania, and therefore the Tribunal finds that there is no real chance that the applicant will be persecuted for reasons of being a Roma and that his fear of persecution is not well founded. …”
(Court Book 227-228)
Failure to consider relevant material
The Applicant submitted the Tribunal was obliged as a necessary condition of its exercise of jurisdiction to take into account relevant matters. It was submitted that in this instance, on the material before it, it was obliged to consider whether the discrimination which the Tribunal accepted the Applicant would face upon return to Romania might in his particular case give rise to such psychological harm that would amount to persecution.
The Applicant accepted that the Tribunal made a finding that the discrimination he would face would not of itself constitute persecution but submitted that the question of whether the discrimination might cause further harm was an integer of the claim raised on the material before the Tribunal. Reliance was placed upon the decision of the Federal Court in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 80. It was submitted in this case the facts are similar to those in SCAT where the question of persecution by way of psychological harm consequent upon discrimination was held to be an integer of the claim which the Tribunal was obliged to consider.
The Applicant submitted that the Tribunal, by not determining whether a well-founded fear of discrimination not in itself being persecution would in turn cause psychological harm to the Applicant which could amount to persecution, failed to consider a relevant matter it was obliged to consider in the exercise of its jurisdiction.
Specifically, it was submitted that the finding "that the Applicant would be discriminated against" taken with the Tribunal's acceptance of the psychiatrist diagnosis "that the Applicant is showing features of a chronic severe stress state/adjustment disorder with depressed and anxious mood" and the psychiatrist's opinion that "untreated, his illness could evolve into a major depressive disorder" necessarily raise for determination the question of whether the future discrimination "not in itself being persecution" would nevertheless over time cause harm to the Applicant. It was argued that the failure of the Tribunal to determine that matter resulted in jurisdictional error.
It was submitted that had the Tribunal considered the question and decided that the chronic discrimination may have caused psychological harm amounting to serious harm within the meaning of s.91 of the Migration Act 1958 (the Act) so as to constitute persecution, then the decision would have been different.
The First Respondent submitted that in this instance the Tribunal has not failed to consider a relevant matter. It was submitted that if there was a separate and discrete claim then the Tribunal should consider such a claim. In this case the Tribunal found the Applicant showed features of chronic severe stress/adjustment disorder with anxious and depressive mood, as diagnosed by a psychiatrist, but found that it was not caused by persecution suffered in Romania.
It was submitted by the Respondent that this case can be distinguished from SCAT, as in this case the Tribunal found that the past discrimination had not caused psychological harm amounting to persecution. Therefore, it was submitted, the Tribunal was not obliged to consider whether future discrimination would cause psychological harm amounting to persecution.
In this instance it was submitted that a fair reading of the Tribunal's reasons as a whole demonstrates the Tribunal itself had "no real doubt" that the Applicant had not suffered persecution (see Minister for Immigration v Rajalingam (1999) 93 FCR 220 and Minister for Immigration & Ethnic Affairs (1997) 191 CLR 559). The First Respondent submitted that in this instance the Tribunal had no real doubt that the Applicant had not suffered persecution causing psychological harm in the past. It therefore did not have to consider the risk of serious harm by way of psychological harm in the future.
In my view, the submissions of the First Respondent in relation to this ground are correct. A proper reading of the Tribunal's decision indicates in my view that it had made a very clear finding, addressing the claim before it, that the Applicant had not been the victim of persecution for a Convention reason in the past. Once having made that substantive adverse finding, then I do not see any error arising from the Tribunal's then perceived failure to consider in some further detail whether the Applicant may suffer harm in the future.
Whilst there may be speculation, albeit based upon the psychiatrist's assessment, that the Applicant upon return to Romania may suffer from harm, it does not follow that that harm would be suffered as a result of persecution for a Convention reason. It was clear in the report of the psychiatrist that in this instance, following the assessment of the Applicant, that his uncertainties in relation to the future due to the "possibility of deportation to Romania and its consequences" - may be a factor leading to aggravation of his diagnosed condition. However, that alone does not mean that the Tribunal has fallen into any error by a failure to consider the harm that may occur to the Applicant upon return to Romania.
The Tribunal, in my view, on a proper reading of its reasons including the detailed extract set out earlier in this judgment, has simply embarked upon a fact-finding process in response to the claim raised, particularly the specific allegations of past persecution. Having analysed the material, it has drawn a conclusion that those events as alleged did not constitute past persecution for the purpose of the Convention. It made specific findings that it did not accept that authorities were harassing the Applicant's wife and reached conclusions which in my view were reasonably open to it on the material.
A great deal of time was devoted to the phrase used by the Tribunal in its decision where it states:
“However, there may be many causes for these symptoms.”
It was suggested in support of this ground that by referring to that possibility, the Tribunal then ought to have indicated the basis for that finding, and by way of alternative argument, if there was no basis for that finding then that may constitute an error, or if there was a basis for the finding then the Tribunal was bound to disclose the information relied upon for that finding. In my view, that submission is misconceived, as the Tribunal, on a proper reading of its reasons and having regard to the material before it, has already made a significant finding concerning past persecution and has simply noted that there may be some risk of harm or aggravation of the Applicant's condition upon return.
Further, it has made the observation that there may be many other causes for the Applicant's symptoms but it is not satisfied that it should reach a conclusion that the Applicant "has been persecuted in Romania". It referred to country information and noted that there is discrimination in Romania against people of Roma ethnicity. It then considered the background, appropriately, of the Applicant and ultimately reached the adverse conclusion that the Applicant's fear of persecution was not well-founded.
The suggestion that there might be "many causes for these symptoms" in any event on the material has a disclosed source. The disclosed source appears in the psychiatrist's report which, as indicated earlier in my reasons, refers quite specifically to the Applicant suffering from the specific condition of chronic severe stress state/adjustment disorder with anxious and depressive mood but specifically refers to that state being perpetuated by his claims and "the possibility of deportation to Romania and its consequences".
In my view, there is therefore adequate material before the Tribunal disclosed and relied upon by the Applicant which provides a proper basis upon which the conclusion drawn by the Tribunal could be reached, namely that there may be "many causes for these symptoms". In any event, that finding and reference alone does not detract from the significant adverse finding concerning past persecution.
Often in cases of this kind where there is a failure to properly consider past persecution, then a complaint may be made that the Tribunal has failed to consider relevant material, as past persecution may at least provide some basis for concluding that there is a likelihood of future persecution.
It does not follow, however, that where there is an absence of a finding of past persecution or, as in this case, a direct finding that there has not been discrimination of a kind that amounts to persecution, that somehow the Tribunal should then embark upon a speculative process concerning persecution in the future. Rather, having found that there is no past persecution of a kind which would be capable of satisfying the appropriate test, it is not incumbent upon the Tribunal to then speculate any further as to what might occur to the Applicant's condition should he return to Romania. It is permissible for it to draw the conclusion set out earlier in the extract in this judgment.
Clearly it should also be noted that the history taken by the psychiatrist is simply the assertion of the history of the Applicant. The Tribunal is not bound to accept that history, and nor do I take the submissions made for and on behalf of the Applicant to suggest otherwise. It is a matter for the Tribunal to assess the history carefully and reach its own conclusions and not then be bound by what a psychiatrist concludes as perhaps being a reason for the symptoms.
The psychiatrist's conclusion is necessarily based upon acceptance of the Applicant’s history. To reject a patient's history would be a significant and perhaps unhelpful step to be taken by any treating doctor. However, the Tribunal is not in the position of a treating doctor but rather is required to make an appropriate assessment of the claim put by the Applicant.
It follows for the reasons given that this ground should fail.
Section 424A
The Applicant submitted that jurisdictional error occurred by not providing particulars of information to the Applicant pursuant to s.424A of the Act, concerning the possibility that "there may be many causes" for the symptoms reported by the psychiatrist. I have already deal with this issue effectively, in my view, having found that there was indeed information readily available set out in the psychiatrist's report.
In any event, I am satisfied that in this instance the Tribunal has proceeded to make significant adverse findings regarding past persecution, and I do not regard it as being a reasonable conclusion that the Tribunal somehow could be claimed to have had in its possession other information before it. Hence s.424A of the Act does not apply.
A finding not open on the evidence
It was submitted by the Applicant that if the Tribunal did not have information, as indicated earlier, it could not have come to the conclusion that the cause of the Applicant's symptoms was other than the cause stated by the psychiatrist and accordingly fell into jurisdictional error.
Again for reasons which are apparent in relation to the first ground, it is clear to me that there has been no error in this instance as the Tribunal has simply addressed the claim as put by the Applicant and made significant adverse findings concerning past persecution, which I conclude were free of jurisdictional error. It follows that there is no further error which can be established, based upon any claim that the findings of the Tribunal were not open on the evidence. As indicated earlier, I am satisfied that the findings were open on the evidence, which I have referred to both in the extract from the Tribunal's decision and in my reasoning concerning the first ground.
Conclusion
It follows therefore that the Application should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 March 2006
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