MZXLR v Minister for Immigration
[2007] FMCA 1124
•17 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXLR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1124 |
| MIGRATION – Protection visa – whether failure to consider claim – whether Tribunal erred in consideration of ‘persecution’ – whether error in considering social group – whether jurisdictional error. |
| Migration Regulations 1994, reg.2.08(1) Federal Magistrates Court Rules 2001, r.11.11(2) Migration Act 1958, ss.36, 36(2), 91R, 91R(2) |
| Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 Arumugam v Minister for Immigration & Multicultural Affairs (1999) FCA 251 Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 MZWDL & Anor v Minister for Immigration & Anor [2006] FMCA 384 |
| Applicant: | MZXLR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1034 of 2006 |
| Judgment of: | McInnis FM |
| Hearing dates: | 16 February 2007, 5 March 2007 and 13 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 17 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.A. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed with costs.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1034 of 2006
| MZXLR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an amended application filed 16 November 2006 which seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 July 2006. The Tribunal decision affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.
The Applicant, it is noted, was born in Australia on 11 February 2003. It is noted that in the Tribunal decision reference is made to reg.2.08(1) of the Migration Regulations 1994 (the Regulations) which have the effect of deeming the Applicant to have applied to the First Respondent's Department for a protection visa on 6 January 2003 when her parents made application.
It is noted again from the Tribunal decision that the birth of the Applicant was not drawn to the attention of the delegate of the First Respondent who had made a decision against the Applicant's parents on 25 February 2003. That decision of the delegate of the First Respondent in relation to the Applicant's parents was affirmed by a differently constituted Tribunal.
Ultimately it became apparent that the Applicant still had a pending application and a delegate decided not to grant a protection visa to the Applicant on 27 April 2006 which led to an application to the Tribunal for review of that decision on 4 May 2006. As indicated earlier, the Tribunal in its decision dated 7 July 2006 affirmed the delegate's decision.
It is further relevant to note that the Applicant's father, by an affidavit sworn 21 November 2006, has consented to act as the Applicant's litigation guardian pursuant to r.11.11(2) of the Federal Magistrates Court Rules 2001.
The Applicant's Claims
The Applicant's claims appear to be set out in some detail by the Tribunal in its decision under the heading, "Claims and Evidence". For convenience it is appropriate to set out an extract of the Tribunal's decision which, I am satisfied, sets out in sufficient detail the relevant parts of the Applicant's claim as follows:
“The applicant who relied on the claims put forward by her father. She also claimed to be at risk of persecution because she is a Muslim girl, at risk of rape, kidnapping, torture and death and the government would not protect her.
The father was is a Gujarati Muslim, born in India in 1966. He married in Navsari in January 2002. He was in business. He is an Indian citizen and lived there until he came to Australia, travelling on an Indian passport issued in Ahmedabad in September 2002. He has lived in Nausari since 1988. He has run his own garment shop since 1990. However it was run by his brother, and the applicant did not attend, from November 2000 until December 2002, due to ‘heavy disturbance with political/criminal leaders’. The applicant was unemployed during this period. He left India illegally and had no difficulty obtaining a passport. His parents and two younger brothers are in India.
In a written statement in support of his application, the applicant said he was a very successful businessman in Navsari, Gujarat. He was subjected to extortion by and thefts from the VHP, which he said was the party of government in the state, and the party which is against Muslim interests. One day they demanded an amount he could not afford, and threatened to kill him. The applicant engaged the support of police he knew, who laid a trap and arrested 3 people. After this problems started. People came to his house on the same evening and took him by force, and said that he would have to stay with them until he withdrew the case. The applicant had no option but to ask the police to release the criminals. Those criminals later bashed him to the point that he could not walk, and came in a jeep and assaulted him. The police refused to help him any more because he had withdrawn the earlier case.
The criminals demanded that he give them a flat, as he owns six in the area where they do business. The applicant refused. They came on a motorbike and fired shots into his shop, killing a customer. The police arrested the perpetrator and his companions, and the applicant went to the police station to identify them. They were remanded in custody. The case remained unfinished and the applicant received threats from their group in order to prevent him from giving evidence. The police were supporting them and if he didn't give evidence the police would turn the case against him.
Later the applicant said the people were out without any charges, and would kill him and his family for the time they spent in prison. They have bribed the police with a huge amount of money.”
(Court Book p.234)
In its decision, the Tribunal also referred to the earlier Tribunal decision which had considered the parents' claim and what had occurred at the hearing before that Tribunal on 15 December 2003. It is not necessary to recite the details, save to note they are set out verbatim in the Tribunal's decision (Court Book pp.234-236). The Tribunal then relevantly sets out further details of the claim in the following terms:
“The Tribunal, as constituted for the parent's review application, relied on the account of events given at their hearing, accepting that there can be valid reasons, including interpreting issues, that lead to apparent changes in claims. The Tribunal affirmed the Delegate's decision in relation to the parents on 15 January 2004.
The applicant in this case submitted an updated statement written statement prepared by her parents in March 2006. In this statement the account of what happened to the applicant's parents differs from that given by them in their own application and review application. It is stated that
·the VHP demanded a very large amount of money and threatened to kill them if it was not give, they continued to come and make this demand for six months, and the applicant's father continued to refuse it, and then three VHP people came to the shop and fired shots killing his client.
·the police arrested the perpetrators as well as the applicant's father. They did this to avoid harassment by the VHP. The earlier statement, in saying that the police laid a trap to catch three people, was not really accurate.
·The applicant's father was released, and other VHP members came and harassed and threatened him not to give evidence. The police also discouraged the applicant's father from giving evidence, and did not even lodge a report.
·There was no prosecution. 15 days after the murder, VHP members came in a jeep and took the applicant's father and beat him very badly. They left him on the roadside, and he couldn't walk for 15 days. The police wanted a statement but the applicant's father was afraid to give one, believing that the police would not do anything anyway.
·About two months before the applicant's parents came to Australia, VHP members demanded he give them property. They have now taken possession of his home.
·Interpreting problems caused the inaccuracies in the applicant's father's initial application.
·The applicant's father suffers anxiety and depression over what happened to him.
The applicant's adviser made a submission dated 5 April 2006 in support of her primary application. It was argued that she was at risk of persecution due to being a member of the particular social groups: women/girls in India, young girls in India, Muslim children in India, or her family who have a well founded fear of persecution. In India, the emphasis on gender roles separates women from the operation of society outside their own home and exposes them to discriminatory treatment, in particular police inaction to protect Muslim women/girls. The adviser cited Amnesty International reports about the problems of the Indian criminal justice system for vulnerable groups, including in the context of communal violence. They argued it was not reasonable for the Applicant and her family to relocate as they would have no family support and would have difficulty obtaining employment and housing. Also communal violence is endemic throughout India.
The adviser annexed news reports about India which highlighted that Muslim women are vulnerable because of the wearing of the veil, the low socio-economic status of Muslims generally, the high level of domestic violence, the lack of autonomy for Indian women generally, and about the communal violence in Gujarat. Also among the attachments were articles about communalism in India, and about the stereotyping of Muslim women and their differential treatment under the law.”
(Court Book pp.236-237)
It is noted that at the hearing before the Tribunal, the Applicant's father gave evidence and provided further details in relation to the claim. In addition, there were post-hearing submissions from the Applicant's adviser responding to a s.424A letter from the Tribunal. The Tribunal's letter dated 14 June 2006 relevantly states:
“The information is that in your father's protection visa application he stated that it was after the police arrested 3 perpetrators of the extortion against him, that his problems began. He was abducted and forced to withdraw the case, and was then assaulted by these same people who came in a jeep. It was when he refused to give the criminals a flat that they fired into the shop, killing a customer. Your father went to the police station to identify them, and they were remanded in custody.
However, at the review stage your father said that the police did nothing about the extortion demands. It was before the major extortion demand that he was beaten and had to go to hospital to have his lip stitched and was there for five days. What happened when he refused for six months to pay the large sum of money demanded after Godhra, was that the perpetrators came to the store and killed the customer. When the case against two perpetrators opened in court, your father was threatened not to give evidence. He did tell the police about the threats, and they wanted him to make a statement but he feared more harassment if he did so. He conceded the accused had been prosecuted.
In support of your application, it was stated that your father himself was arrested, that the police themselves discouraged your father from giving evidence, and that there was no prosecution.
At the hearing of your own application your father said that the shotting victim's brother was among those who came in a jeep to threaten him not to give evidence, and took him and beat him. It was at this stage that he was hospitalised (for 3 days, not 5) with the cut lip.
In his protection visa application your father said that his brother ran his business from November 2000 until November 2002, when your father was staying away from it due to political disturbances. However, he later denied that the people named as his brothers in his application were his brothers, and said that he sold the business months before coming to Australia (in early December 2002).
This information is relevant because the significant changes in your father's claims over time raise doubts about their credibility.”
(Court Book p.239)
The Tribunal received a submission from the Applicant's adviser on 27 June 2006 which the Tribunal records as arguing the following:
“it was unreasonable for the applicant to relocate because it would be extremely difficult for her parents to obtain permission from Hindu authorities to set up a new business. They would have to traverse Hindu areas to relocate to a Muslim area.
the past persecution of the applicant and the country information indicated there was a serious level of risk to the applicant”
(Court Book p.239)
The Applicant also relied upon a statutory declaration by the Applicant's father annexed to the adviser's response which, it is noted, also contained news reports. The father's statutory declaration set out further details which the Tribunal records in its decision (Court Book p.240).
The Tribunal Decision
The Tribunal considered the claims set out above and further referred in some detail to country information. Specific information referred to communal violence in Gujarat and, in particular, reference was made to the United States Department of States International Religious Freedom Report for 2004 which in part states:
“In 2002, a fact-finding team visited Gujarat to document the effect of communal riots on women. The team consisted of women from various women's organizations. The report stated that Muslim women had been subjected to "unimaginable, inhuman, barbaric" sexual violence during the riots, suffering rape, gang rape, and molestation. Due to society stigma in the country, few women that have been raped file charges. The Supreme Court has shown increased concern over this circumstance, and in January the court reopened a 2002 rape case in which 14 members of the victim's family also were murdered. The case included charges that the Gujarat police starting in January resulted in the arrest of 15 persons including senior BJP and VHP officials and police officers. At the end of the period covered by this report, the case was ongoing.”
(Court Book p.244)
I am satisfied that the Tribunal's findings have been accurately summarised in the contentions of fact and law of the First Respondent as follows:
“20. The Tribunal made the following findings [CB 245-246]:
(a)the Tribunal did not accept that the Applicant was at risk of persecution in connection with her father having been targeted as claimed;
(b)while the Tribunal accepted that the Applicant's father may, as a shopkeeper, have been targeted for minor extortion, the Tribunal was not satisfied that the this was so serious as to constitute persecution;
(c)the Tribunal did not accept the Applicant's father as a credible witness and was not satisfied that much of his account of events, beginning with an escalation of the extortion and leading to his claimed escape from India, were true;
(d)the Tribunal did not accept that the Applicant's father was targeted for extortion by members of the VHP, escalating into physical threats and threats to his life;
(e)the Tribunal did not accept that the Applicant's parents were threatened, that shots were fired at the Applicant's father's shop, that a customer was killed, that the Applicant's father was apprehended by the police or that he was beaten up;
(f)in the circumstances, the Tribunal did not accept that the Applicant's father was persecuted, or that he was targeted at all due to his religion;
(g)the Tribunal considered the Applicant's other claim relating to being from a Muslim family and, based on country information, the Tribunal did not accept that the Applicant faced a real chance of being harmed due to her religion;
(h)country information before the Tribunal did not indicate that women or girls in general, or Muslim women or girls in particular, or Muslim children, were persecuted in India, and there was no evidence about any particular attributes of the Applicant that mark her out from this impression;
(i)the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution due to her religion or for any other Convention reason, in the reasonably foreseeable future; and
(j)having considered the evidence as a whole, the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Convention.”
Grounds of Application
In the amended application the Applicant claims jurisdictional error based upon the following:
(The Tribunal) misunderstood and/or misconstrued a criterion under s36 of the Act and/or failed to consider an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant's claim being whether the applicant would suffer discrimination amounting to persecution and/or whether there was a real chance of her suffering persecution by non-state agents motivated to harm her for a Convention reason or by reason of the State withholding protection for a Convention reason.
Submissions
The Applicant's submissions have been set out in brief terms in the Applicant's contentions of fact and law as follows:
“15.It is the Applicant's respectful submission that in assessing the claims of the Applicant at CB 248 the Tribunal committed the two complementary jurisdictional errors identified.
16. The Applicant through her representative made specific claims reliant on her membership of a number of different formulations of particular social group (see CB 144-145 in the submission). She specifically invoked the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ("Khawar") [84]-[85] (and see per Gleeson CJ at [27]-[31]) to posit a Convention related fear of persecution and/or discrimination amounting to persecution on these bases. There was ample evidence of the factual basis for such a claim of State condoned and institutionalised discrimination particularly of the Applicant as a young Muslim woman (CB 144-147; 159; 164-169).
17. The only reference anywhere in the whole decision to the legal issue of persecution is at CB 233. There is no reference to or analysis of how claims such as the Applicant's might come within the terms of the Convention and be Convention related in either of the ways formulated in Khawar. All that appears is the formulaic reference to s91R that is found in all RRT decisions. At no point in the Findings and Reasons is there a reference to the relevant authorities or any discussion of their applicability which is significant given the specific articulation of the claim. Moreover there is no recognition of the significance of a claim of discrimination amounting to persecution (i.e. instances of discrimination individually not persecutory but cumulatively amounting to persecution) which is of established provenance (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-258 and UNHCR Handbook at pars [53] [54]-[55]] and should be in the Applicant's submission have been considered on the facts.
18.However the Tribunal clearly ignores the possibility of a case being made out on this basis by the manner in which it reasons at CB 248 (line 14-19). It refers to evidence which was presented about the disadvantaged status of women, and the incidence of domestic violence, and discriminatory treatment against Muslim women by the law, and their stereotyping, but it concludes that it (meaning the country material or evidence before it) did not indicate that women or girls in general, or Muslim women or girls in particular, or Muslim children, are persecuted. Of course none of the material used the word persecution, but of itself that means nothing. It was for the Tribunal to analyse the claims and the country information guided by the correct principles and arrive at a properly considered legal view. This is the point in the reasons at which, had the Tribunal turned its mind to the conceptual issues, one would have expected to find reference to the legal principles and their relevance or otherwise in the case in hand. This it failed to do.
19. Furthermore there is no suggestion at all that the Tribunal ever turned its mind to or examined the factual material in a Khawar framework to ascertain whether there was such a level of institutionalised discrimination such that it could be said to be persecutory and the toleration or condonation of it could be said to be Convention-related. The simplistic and literalist conclusion noted in the preceding paragraph regarding the country information was reflective of a deeper failure to of analysis and demonstrated the presence of jurisdictional error in the Reasons of the Tribunal.”
During the course of oral submissions, counsel for the Applicant specifically referred the court to the following extract from the Tribunal decision:
“Evidence was presented about the disadvantaged social status of women in India, and the incidence of domestic violence, and discriminatory treatment against Muslim women by the law, and their stereotyping, but it did not indicate that women or girls in general, or Muslim children as was also mentioned by the adviser, are persecuted in India. There was no evidence about any particular attributes of the applicant that mark her out from this impression.”
Counsel referred to extracts from the Tribunal's decision set out earlier in this judgment where the Tribunal recited the claims made by the Applicant with appropriate references to the treatment of Muslim women during communal disturbances. Reference was made to detailed submissions provided on behalf of the Applicant in correspondence dated 5 April 2006 from the Applicant's lawyers (Court Book pp.143-145) where it was argued more emphasis is placed upon systematic discrimination against vulnerable groups. Specific reference was made to violence in Gujarat and it was noted that the Applicant, although a young child, comes from that city where communal disturbances take place. Reference was made to the Tribunal decision which, it was submitted, accurately sets out the submissions made by the Applicant's adviser in the following terms:
“The Applicant's adviser made a submission dated 5 April 2006 in support of her primary application. It was argued that she was at risk of persecution due to being a member of the particular social groups: women/girls in India, young girls in India, Muslim children in India, or her family who have a well founded fear of persecution. In India, the emphasis on gender roles separates women from the operation of society outside their own home and exposes them to discriminatory treatment, in particular police inaction to protect Muslim women/girls. The adviser cited Amnesty International reports about the problems of the Indian criminal justice system for vulnerable groups, including in the context of communal violence. They argued it was not reasonable for the Applicant and her family to relocate as they would have no family support and would have difficulty obtaining employment and housing. Also communal violence is endemic throughout India.
The adviser annexed news reports about India which highlighted that Muslim women are vulnerable because of the wearing of the veil, the low socio-economic status of Muslims generally, the high level of domestic violence, the lack of autonomy for Indian women generally, and about the communal violence in Gujarat. Also among the attachments were articles about communalism in India, and about the stereotyping of Muslim women and their differential treatment under the law.”
(Court Book p.237)
Specific reference was made to the following paragraph in the Tribunal's decision:
“Nevertheless, the Applicant is from a Muslim family and it is necessary to consider her other claims. Based on the country information, the Tribunal does not accept that the Applicant faces a real chance of being harmed due to her religion. Although communal violence exists in Gujerat, and affects Navsori, and without minimising the horror of what occurred after Godhra, and although it is true as the adviser says that a small chance can be a real chance, statistically speaking the size of the Muslim population measure against the numbers of Muslims harmed indicates that the chance is not merely small but it is remote. In a population of say 4.5 million across the state of Gujarat for example, 2000 were killed (and no doubt an equal number injured) in the worst outbreak of recent times. Notwithstanding the vile nature of crimes committed against women in particular in that massacre, the Tribunal is not persuaded that the chance becomes greater when one takes the gender of the Applicant into account.”
(Court Book p.246)
That paragraph precedes a further paragraph set out earlier in this judgment where the Tribunal referred to evidence presented about the disadvantaged social status of women in India. It was argued that that passage was indicative of error to the extent that the evidence, according to the Tribunal, "did not indicate that women or girls in particular, or Muslim children as was also mentioned by the adviser, are persecuted in India". It was argued that simply because the word "persecution" does not appear in the material does not then obviate the necessity for the Tribunal to analyse whether in fact what is set out in the evidence could constitute discrimination amounting to persecution.
It was argued that it is not sufficient in applying the real chance test and the principles arising from Khawar to simply accept the allegations but then conclude that the allegations do not indicate that women and girls are persecuted.
The First Respondent's Submissions
The First Respondent submitted that the Tribunal had correctly identified that the issue before it was whether the criterion specified in s.36(2) of the Migration Act 1958 (the Migration Act) was satisfied. The Tribunal otherwise, it was argued, correctly identified that its satisfaction depended upon whether the Applicant satisfied it that the Applicant was a refugee as defined in Article 1A(2) of the Convention. The Tribunal otherwise correctly referred to relevant authorities concerning the meaning of Article 1A(2) and specifically the meaning of the expression "having a well-founded fear of persecution for a Convention reason".
The case law set out by the Tribunal highlights the four key elements of the Convention's definition of persecution under the heading of "Definition of Refugee'" (Court Book pp.232-233).
It was submitted that the Tribunal decision reveals nothing to suggest that it wrongly construed the meaning of "persecution". It set out its understanding of the meaning of the word including a summary of the meaning of "serious harm" for the purpose s.91R(2) of the Migration Act. It was submitted that the Tribunal is not obliged to set out the relevant law on more than one occasion. The First Respondent submitted the Tribunal in this instance correctly summarised the relevant law and applied that law to the facts as found.
It was noted that the Tribunal made a finding open to it namely, that the Applicant was not at risk of persecution as defined in s.91R of the Migration Act. It was further submitted that it was open to the Tribunal to make findings that the Applicant did not have a well-founded fear of persecution and that the conduct complained of was not of a sufficient seriousness to amount to persecution for the purposes of s.91R of the Migration Act.
It was submitted that, "The question of whether particular conduct amounts to serious harm is a factual issue over which the Tribunal is final arbiter" (see Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 268 and 271).
It was argued that the assessment of whether harm is sufficiently serious to amount to persecution is a question of fact and degree to be addressed by the Tribunal and not subject to judicial review (see Arumugam v Minister for Immigration & Multicultural Affairs (1999) FCA 251 at [37], on appeal (1999) FCA 1285).
In the present case it was submitted that the Tribunal considered the evidence of the Applicant regarding her father's claims and her claim of being at risk of persecution because she is a Muslim girl at risk of rape, kidnapping, torture and death, and further that the government would not protect her on the documentary evidence provided by the Applicant to support the claim. This is evident, it was submitted, from the Tribunal's decision where it recites under the heading "Claims and Evidence" the relevant claims made and, moreover, where it refers accurately to the submissions made by the Applicant's adviser set out earlier in this judgment (Court Book pp.234 and 237).
It was submitted the Tribunal referred to the evidence of the Applicant's father at the hearing and otherwise relied upon country information. It was noted that the country information did not report that serious harm constituting persecution was inflicted on Muslim women by the authorities or anyone else in India with the sanction of the state. It was open therefore for the Tribunal to come to the conclusion that it did reach, as set out earlier in this judgment. Although finding communal violence exists, it was argued that the Tribunal was entitled to find that crimes against women were not greater when one "took into account the gender of the Applicant", nor was there any evidence that her particular attributes marked her out from the general status of women in India.
It was submitted that for the Applicant to succeed, relying upon the principles set out in Khawar, it would be necessary to show "that the harm amounting to persecution it tolerated or condoned by the authorities or the police". It was submitted that there is "nothing in the evidence submitted by the adviser's advisers that indicates that Muslim women have been unable to obtain police protection or state protection, or that there is selective enforcement of laws of general application regarding serious assault by one individual upon another, which was said to constitute a form of selective or discriminatory treatment amounting to persecution by the state authorities".
It was argued therefore that the Tribunal dealt with the Applicant's claim and had made findings in relation to the claim, free of any jurisdictional error. Specifically, it was argued that the question "before the court is whether the Tribunal understood the scope of social group in the convention nexus and whether it made a finding on that claim".
It was submitted that the authorities are clear in this area "that a social group isn't defined by what is feared by the Applicant but rather they must be defined by some characteristic or attribute which is shared by a group which defines the group to its potential persecutors". Reliance was placed upon the decision of the court in Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225. Particular reference was made to the following extracts from the High Court decision in Applicant A:
“The feared “persecution” of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well-founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer “continue to refuse to avail himself of the protection of the country of his nationality” if “the circumstances in connexion with which he has been recognized as a refugee have ceased to exist”. As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant “circumstances”, those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality.
…
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination — even discrimination amounting to persecution — that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.”
When considering the question of persecution, Counsel also referred the Court to the High Court decision in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 where the court relevantly states at p.302-303 the following:
“As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of “refugee”. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct.
The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality. If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality. That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently.
The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups — for example, terrorist groups — which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views — for example, those who advocate violence or terrorism — differently from other members of society.
As McHugh J pointed out in Applicant A, the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”. Moreover, it is “[o]nly in exceptional cases … that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution”.
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.”
It was argued that the passage which was the subject of criticism by counsel for the Applicant in the Tribunal's decision concerning what occurred in India dealt directly with the claim and was a finding open to the Tribunal on the evidence. It was submitted that the Tribunal's finding addressed the issues it was required to address namely, whether there was a criminal element providing the basis of there being a perpetrator prepared to undertake illegal harm to the Applicant and whether the harm was condoned or sanctioned by the state.
Reference was made to the articles concerning Muslim women which were provided to the Tribunal and it was submitted those articles did not support the proposition that there was a failure of the state to assist women should they be prepared to go to the police. There was no evidence to support the suggestion that the police sanctioned any of the mistreatment of Muslim women. Whilst the Tribunal accepted that there was a clear case of discrimination, that of itself, it was submitted, does not provided a base upon which it could be concluded that there is evidence showing a level of official sanction which would constitute persecution.
It was submitted that on a fair reading of the Tribunal's decision, "it clearly dealt with the Applicant's claims that she was at risk of persecution due to being a member of particular social groups … and made relevant findings about those claims". The mere fact that the Tribunal was not satisfied the Applicant had a well-founded fear of persecution for a convention reason did not provide a basis for reviewable error.
Reasoning
In my view the Tribunal in this instance has carefully considered the detailed material which has clearly led it to express a concern arising out of the reports of mistreatment of Muslim women. It has otherwise in my view correctly addressed the claims made for and on behalf of the Applicant and had due regard to all the relevant evidence.
I can see no error in the manner in which the Tribunal applied the law, and in particular accept, as submitted by the First Respondent, that the Tribunal has correctly identified the criterion specified in s.36(2) of the Migration Act and has otherwise correctly referred to relevant decisions in relation to the meaning of Article 1A(2) of the Convention and specifically the meaning of "having a well-founded fear of persecution for a Convention reason". It correctly identified the four key elements to the Convention's definitions of persecution.
I do not accept that the Tribunal has wrongly construed the meaning of "persecution".
The Tribunal considered the material before it and recited the claims comprehensively under the hearing "Claims and Evidence" which I have deliberately set out in some detail earlier in this judgment.
Whilst the crucial finding of the Tribunal referred to in the passage which appears at Court Book p.246 whereby the Tribunal refers to the evidence presented about the disadvantaged social status of women in India appears to be brief, in my view the brevity of the conclusion does not of itself provide a basis upon which the court is able to conclude that there has been jurisdictional error. Instead, the Tribunal, having recited in detail the claims, has then proceeded to make specific findings on the material including reference to country information in a manner free of jurisdictional error. It was open to the Tribunal in its analysis to make the finding set out earlier in this judgment where in part it specifically states:
“Notwithstanding the vile nature of crimes committed against women in particular in that massacre, the Tribunal is not persuaded that the chance becomes greater when one takes the gender of the applicant into account.”
Likewise, it was entitled to make the finding of fact that there was "no evidence about any particular attributes of the applicant that mark her out from this impression".
Whilst the Tribunal itself appears to express concern and discomfort about the circumstances in India based upon the country information and other evidence, it has then proceeded, in a manner free of error, to draw the conclusions which are critical to its ultimate finding that it was not satisfied the Applicant had a well-founded fear of persecution due to her religion or for any other convention reason in the reasonably foreseeable future.
It should be noted in these proceedings that the Court had previously dealt with an application by the parents of the Applicant and delivered a decision (see MZWDL & Anor v Minister for Immigration & Anor [2006] FMCA 384). I note in passing that the Court's decision was not set out in full in the Court Book as alternate pages were missing. Nevertheless, nothing turns on that omission and the parties did not indicate that there should be any objection to this Court considering the current claim of the Applicant. I do note in passing that the decision of this Court in relation to the parents' claim was the subject of an appeal to the Federal Court which was dismissed.
In my view, the mere fact that the Court has dealt with the parents' claim on a previous occasion does not prevent it from considering this application given the specific claims and criticisms made of the Tribunal decision which was the subject of this judicial review.
It is my concluded view that in this instance the Tribunal has not misunderstood or misconstrued the criterion under s.36 of the Migration Act and has otherwise reached its decision in a manner free of jurisdictional error.
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 July 2007
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