MZXKX v Minister for Immigration
[2008] FMCA 567
•2 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXKX v MINISTER FOR IMMIGRATION | [2008] FMCA 567 |
| MIGRATION – Administrative review – review of Refugee Review Tribunal decision – discrimination by family – unavailability of care or support to enable subsistence – HIV/AIDS – failure to consider discrimination by family member. |
| Migration Act1958, s.91R |
| Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 |
| Applicant: | MZXKX |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 531 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 November 2007 |
| Date of last submission: | 9 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | DLA Philips Fox |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 16 March 2007.
That a writ of Mandamus issue requiring the second respondent to hear and determine the application according to law.
The Respondent do pay the Applicant’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 531 of 2007
| MZXKX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Cambodia who arrived in Australia on 11 August 2001. He applied for a protection visa on 8 February 2006 which was refused by a delegate of the Minister on 28 February 2006. The applicant then sought a review of the delegate's decision in the Refugee Review Tribunal. On 16 March 2007, the Tribunal affirmed the decision of the delegate.
The applicant sought a protection visa on the basis that he feared persecution as a result of having contracted HIV. He was diagnosed with HIV in late 2005 and has been responding to active treatment in recent times, although without treatment has a limited life expectancy. The precise prognosis for the future with or without treatment is not apparent from the terms of the RRT decision, although may be as little as 11 months if he does not receive treatment.
The applicant claims that he would be ostracised and discriminated against if he were to return to Cambodia, leaving him unable to obtain employment, unable to receive medical care, and without any familial support. Even if he could obtain work, as his HIV worsened he would become unable to support himself and would be left without the capacity to subsist due to the discrimination against him by his family.
The Tribunal reviewed a large amount of country information, looking at a number of aspects of the applicant's claim: state discrimination; societal discrimination; employment discrimination; and medical treatment.
The Tribunal concluded that the applicant was a member of a social group, namely HIV sufferers in Cambodia. The Tribunal accepted that the applicant has a subjective fear of returning to Cambodia as a result of the potential discrimination and ostracisation, and lack of medical treatment. The Tribunal also accepted that there was a level of societal discrimination against those with HIV in Cambodia and that the applicant may face shame and rejection by his family.
The Tribunal concluded that the societal discrimination was being addressed by the government of Cambodia in the form of legislation and policy. As a result, the Tribunal concluded that the societal discrimination did not amount to persecution within the meaning of the legislation.
Similarly, the Tribunal concluded that anti-discrimination legislation and policy implementation in Cambodia meant that the applicant would not be subject to a level of discrimination in employment that would deny him the capacity to earn a living (at least whilst he was well enough to work) which would amount to persecution.
With respect to the lack of medical care in Cambodia, the Tribunal found that there is a general lack of medical resources in Cambodia, but no discrimination. As a result the harm from lack of medical treatment was not for a convention based reason.
The applicant challenged the Tribunal decision on three different basis. The first related to a claim that there was a lack of evidence to support the findings of the tribunal, the second that the decision was irrational or unreasonable and the third, that the tribunal failed to properly consider the discrimination he may suffer from his family.
Lack of Evidence
It was argued on behalf of the applicant that the Tribunal had before it no evidence to support the findings of fact that the Tribunal made. It appears to me that there is evidence in the country material that could support the findings of the Tribunal. For example, the country information demonstrated that:
a)the overall response to HIV/AIDS in Cambodia is strong and extensive, benefiting from a wide range of national and international organisations and donors, including wide participation of civil society (World Health Organisation Report December 2005);
b)Cambodia had passed legislation making it illegal to terminate a person's employment based upon actual perceived or suspected infection with HIV (article 36 of the Cambodian law on the prevention and control of HIV/AIDS);
c)there were reports that 10 percent of large enterprises had workplace HIV policies and programs;
d)there were also reports that Buddhist monks, who are held in the highest regard in Cambodia, have in recent years begun to break down barriers of stigma and discrimination by helping people living with AIDS meet their basic needs.
There is no question that it was legitimate for the tribunal member to have regard to the country information available to them in making findings of fact in this case. A reading of the decision of the tribunal member shows that the member carefully considered this material in making the findings that form the basis of the decision.
I therefore find that there is no merit in these grounds.
Irrational or Unreasonable Decision-making
The applicant did not pursue the claim that the decision was irrational or unreasonable in the hearing before me.
Familial Discrimination
The third ground related to the Tribunal's consideration of the potential impact upon the applicant if he were unable to obtain appropriate medical care, and therefore reach a state of health where he was unable to work. The Tribunal's conclusions in this regard are as follows:
The Tribunal notes that, if the applicant is unable to access the requisite level and combination of medical treatment he needs to remain well, his chances of obtaining or retaining employment will be diminished and, if he is also rejected by his family, his capacity to subsist will be threatened. For the reasons set out above, however, these circumstances will arise because Cambodia is a developing country with limited capacity to provide a high level of medical care to all who may need it, not because the treatment will be denied to the applicant for a Convention reason. Considering the applicant’s claims on a cumulative basis, the Tribunal does not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future for a convention reason.
The applicant's circumstances raise compelling humanitarian issues, however, which the Tribunal has no jurisdiction to consider.
In this passage the Tribunal notes that in ability on the part of the applicant to access the requisite level of combination of medical treatment he needs and he is also rejected by his family, then ‘his capacity to subsist will be threatened’.
The Tribunal's findings make it clear that a lack of medical treatment would not occur as a result of discrimination, but rather as a result of the ‘economic constraints and lack of resources in Cambodia’: see page 15. It is not open to the applicant to challenge this finding in the proceedings before me.
Earlier in the decision (at page 14) the Tribunal member stated that she 'accepts that the applicant might face shame and rejection by his family, but does not consider that this can be characterised as serious harm amounting to persecution.' However this comment is in the context of a paragraph discussing societal discrimination in Cambodia which the Tribunal member found 'is being addressed and ameliorated by legislation and community intervention and support and awareness programmes'. It appears clear that the Tribunal found that the rejection of the applicant by his family would not amount to serious harm, at a time when he was unable to work or otherwise support himself. Implicit in the tribunal's reasons at page 15 (as quoted above) is the proposition that that once his medical condition reached a point where he was unable to work he would then be likely to suffer harm that could well be ‘serious harm’ within the meaning of the legislation, as a result of his capacity to subsist be threatened. The phrase ‘capacity to subsist will be threatened’ comes from s.91R of the Act.
The Tribunal did not go on to explore whether there was a real chance of this occurring as it concluded that these events would flow from the denial of treatment which it had already found was not caused by a Convention reason.
Whilst in most cases it is the actions of the nation state that are the cause of the serious harm that may lead to a protection visa, in some cases the conduct of the nation state in failing to protect a person from discrimination being perpetrated by others. It remains open to an applicant to show persecution at the hands of persons other than those controlled by agencies of the nation state. As the Chief Justice of the High Court said in Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14:
[27] Article 1A(2) does not refer to any particular kind of persecutor. It refers to persecution, which is conduct of a certain character. I do not see why persecution may not be a term aptly used to describe the combined effect of conduct of two or more agents; or why conduct may not, in certain circumstances, include inaction.
…
[29] If there is a persecutor of a person or a group of people, who is a "non-state agent of persecution", then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
As was pointed out by McHugh and Gummow JJ ‘malign intention on the part of State agents is not required’: see para [84], and see S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 at [38] and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 at [35] and [60].
In this case there is a combination of factors that may lead to the applicant being unable to subsist in Cambodia. The first is the general level of discrimination in Cambodian society, the second is his potential inability to work as a result of his HIV, the third is his poor prognosis due to a lack of medical care, and the final the denial of familial support as a result of his family's discrimination against him due to his membership of a particular social group.
If the only form of support available in a society is being denied as a result of discrimination (which appears to be the likely scenario in this case), then the claim that the threat to the applicant’s capacity to subsist is for a convention reason must be addressed by the Tribunal.
It appears to me that the real question in this case is whether the applicant holds a well-founded fear that his capacity to subsist would be threatened if he were to return to Cambodia as a result of his inability to rely upon family support once he is no longer able to work. In order to determine whether this view is well-founded the Tribunal must consider the likelihood that he will be unable to work in the foreseeable future, the likelihood that his family would refuse to provide him with any support, and whether this is as a result of his membership of the particular social group identified by the tribunal. This must be undertaken in the context of Cambodian society and resources.
That the applicant’s condition may arise as a result of non-discriminatory deficiencies in his medical care is not an answer to this part of his claim. As a result, the Tribunal has failed to exercise jurisdiction in the context of this case. Unfortunately the tribunal was diverted by its focus upon the availability of medical care as being a causative element, rather than simply one of the circumstances constituting the factual matrix in which it needed to consider whether the applicant's claims of likely discrimination by the applicant's family against him were well-founded.
Counsel for the respondent pointed out that the tribunal had not in fact made a finding that the applicant will ultimately become so unwell that he could not work. No finding in this regard has been made as a result of the Tribunal's view that discrimination by the applicant's family would not be causative, as set out above. There was medical evidence before the tribunal (see page 108 of the court book). These are matters for the Tribunal to make findings upon in order to properly consider this ground of the application. It appears to me to be appropriate for the Tribunal to squarely consider this integer of his claim, and make findings of fact about this aspect of the claim. Whether this is ultimately a basis for the issue of a protection visa will depend upon the facts as found with respect to this aspect of the claim.
It was also argued on behalf of the respondent that as the Tribunal Member had stated that they had considered "the applicant's claims on a cumulative basis" and also that they had "considered the evidence as a whole", the case under this ground was an impermissible attempt to review the findings of fact. A fair reading of the decision of the Tribunal member, and in particular the relevant passages from page 13 until the end, indicates to me that the Tribunal Member did not correctly approach the question of discrimination by the applicant's family, but rather unduly confined themself to issues relating to the lack of medical treatment and potential discrimination by the state. I therefore reject the argument that the applicant simply seeks to review the findings of fact.
I therefore order that a writ of certiorari issue quashing the decision and a writ of mandamus issue requiring the Tribunal to consider the matter according to law.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 2 May 2008
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