MZXNN v Minister for Immigration
[2007] FMCA 509
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 509 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether failure to take into account relevant matter – whether Tribunal misdirected itself in relation to the meaning ‘serious harm’ – consideration of social group – whether jurisdictional error – application dismissed. |
| Migration Act 1958, ss.36, 91, 424 |
| VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 |
| Applicant: | MZXNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1501 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
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 1501 of 2006
| MZXNN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 October 2006. In its decision the Tribunal affirmed a decision of a delegate to refuse to grant to the Applicant a protection visa.
The Applicant was born in Malaysia on 22 December 1967 and is a male citizen of that country. He arrived in Australia on 14 March 2006 on a visitor visa which permitted him to stay in Australia until 14 June 2006. On 27 April 2006 he lodged an application for a protection visa. The application was refused by a delegate of the First Respondent on 7 July 2006. The Applicant then applied to the Tribunal for review of the delegate's decision on 19 July 2006.
The Tribunal invited the Applicant to attend a hearing on 7 September 2006 to give oral evidence and present arguments in support of his case. The Applicant attended a hearing on 7 September 2006 and gave evidence with the assistance of an interpreter. Prior to the hearing the Applicant provided the Tribunal with a Statutory Declaration dated 30 August 2006. After the hearing the Tribunal by letter dated 14 September 2006 pursuant to s.424A of the Migration Act 1958 (the Act) invited the Applicant to comment on information which the Tribunal indicated may be the reason or part of the reason for deciding that the Applicant was not entitled to a protection visa. The section 424A letter (Court Book pp.93-96) referred in detail to claims made by the Applicant in relation to incidents and work history. It specifically referred to answers given by the Applicant at the hearing and then sought comment from the Applicant. The Applicant provided a response to the s.424A letter received by the Tribunal on 28 September 2006 (Court Book pp.98-102). The response was in the form of a Statutory Declaration dated 28 September 2006.
The Applicant's claims
Under the heading, "Claims and Evidence" the Tribunal set out in some detail the Applicant's claims. It is noted that the Applicant who was born in Malaysia was raised as a Hindu by his parents. He converted to Islam on 28 August 1991. This was the result of falling in love with a Muslim woman and wanting to marry her. He claimed that he knew he could not marry her unless he changed his religion. He claimed that his future father-in-law owned the restaurant where the Applicant worked from the age of 16.
The Applicant's family was opposed to the marriage and did not approve of his conversion from Hindu to Islam. They wanted him to partake in an arranged marriage. As a result he claimed to have had very little contact with his family. The Applicant's father-in-law was opposed to the marriage and it was claimed this was on the basis that the Applicant was an employee of the father-in-law's business, was doing a subordinate job in the restaurant, was not a Muslim, and because of the caste system in the Tamil community, he was considered below his partner's caste and not good enough to marry her.
It was noted that the marriage took place in India on 5 January 1990 and was subsequently registered in Kuala Lumpur. The Applicant claimed, however, that since that time he had been an outcast in his own family and the Indian community because his family and the community did not accept the marriage as a marriage between a Muslim and a Hindu is rare. There are three children of the marriage. The Applicant's wife and children remain in Malaysia. Details were given to the Tribunal of the attitude of the Applicant's father-in-law, which lead to significant findings set out further in this judgment.
Allegations were made of threats by the father-in-law to kill the Applicant and that he had to go into hiding many times with his wife. Specific incidents were referred to by the Applicant which again were the subject of significant findings by the Tribunal. Significantly the Applicant claimed to be afraid that if he returned to Malaysia, his father-in-law would find him and kill him because of his disapproval of his marriage to his daughter.
The Tribunal referred to the Statutory Declaration dated 30 August 2006 and recited the claims set out in that declaration. However, it is clear from that Tribunal decision that it then pursued in some detail at the hearing the details as alleged by the Applicant (Court Book pp.117‑122). The Tribunal then recited the contents of its request in the s.424A letter and the Applicant's response dated 28 September 2006 (Court Book pp.122‑126).
The Tribunal's findings
The Tribunal found that:
“…if the applicant returned to Malaysia there is no real chance now or in the foreseeable future that he would face harm for reason of his race, religion or membership of a particular social group, or for any other Convention reason.:”
(Court Book pp.129-130)
Significant findings were made by the Tribunal which in many instances involved acceptance of some of the claims made by the Applicant, although ultimately even where those claims are accepted, the Tribunal considered that the Applicant was not at risk or persecution as defined in s.91R of the Migration Act.
The findings of the Tribunal have been accurately set out in the First Respondent's contentions as follows:
“14.The Tribunal relevantly, made the following findings [CB 127-130]:
(a)the Tribunal accepted that the applicant was married to a Muslim woman whom he met while working for her father and to whom he subsequently married against the wishes of her family, having converted to Islam [CB 127];
(b)the Tribunal accepted that marriages between people of Muslim religion and Hindu religion in Malaysia were rare and met with general disapproval, particularly for the non- Muslim party to such a marriage [CB 127-128];
(c)the Tribunal accepted that the applicant may have been ostracised after his marriage and an outcast to his family but this did not constitute serious harm within the meaning of s.91R(1)(b) of the Act;
(d)the Tribunal found that it was far fetched that the applicant’s father in law had been motivated to attack him for some 16 years since the time of his marriage and noted that for much of that time, the applicant lived in the same city without any further consequences;
(e)the Tribunal was not satisfied that the applicant was ever attacked and injured by his father in law or other men and the extensive periods of residence in Kuala Lumpur was inconsistent with his claimed fear of his father in law;
(f)the Tribunal found that the applicant gave vague and unsatisfactory evidence in relation to the three alleged attacks by his father in law and other men and noted that he gave conflicting evidence about his injuries;
(g)the Tribunal found that the applicant gave vague and unsatisfactory evidence in relation to the three alleged attacks by his father in law and other men and noted that he gave conflicting evidence about his injuries;
(h)as the Tribunal did not accept that the applicant had been harmed by his father in law, it did not accept that the applicant was in need of or denied police protection;
(i)the Tribunal accepted that Indian Tamil men of Hindu religious background and lower caste constitute a particular social group in Malaysia and that the applicant was a member of such a group. However, because the low level social ostracism (and the treats received) did not amount to ‘serious harm’ under the Act, the applicant did not suffer serious harm for reason of his membership of a particular social group [CB 129].”
Grounds of the application
In the application filed 28 November 2006, the Applicant sets out the following four grounds:
“1.The Tribunal accepted that my marriage being a marriage between a Hindu and a Muslim was a rare one and for this reason I was ostracized and treated as an out cast after the marriage. The tribunal did not explain and/or give reason as to why it held that the degree of ostracism and treatment as an outcast does not constitute serious harm within the meaning of s91R of the Migration Act.
2.The Tribunal accepted that being an Indian Tamil man of hindu religious background and lower caste I have constituted a particular social group but failed to apply this convention ground to my fear of persecution.
3.The tribunal misrepresented the refugee convention without realizing that I have not reported the incidents involving the persecution at the hands of my father in law to the police due to well-founded fear of persecution by my father in law and the authorities because of my particular social group of being an Indain Tamil, hindu religious background and lower caste.
4.The tribunal again misrepresented the refugee convention without realizing that I was unwilling to seek the protection of the Police due to my particular social group.”(sic)
It should be noted the Applicant is self-represented. Despite orders made by the Court on 29 January 2007, the Applicant, perhaps not surprisingly, did not file any contentions of fact and law.
At the hearing the Applicant sought to add what was taken to be a further ground alleging that the Tribunal had failed to take into account a relevant matter. The relevant matter appears to be a claim by the Applicant that he had moved residence in order to avoid his father‑in‑law and that he had mistakenly referred to one address in his application for a protection visa which was then relied upon by the Tribunal. I shall deal with the additional ground in due course.
Applicant’s submissions
The Applicant relied upon the grounds set out in his application and expressed concern about the Tribunal's findings, and, as I understood it, an apparent lack of understanding of the difficulties faced by the Applicant in Malaysia, given the background referred to earlier in this judgment.
The Applicant acknowledged that he had received the written contentions of fact and law from the First Respondent, and again not surprisingly he was unable to provide specific submissions in relation to the matters raised by the First Respondent. Due allowance is made to the Applicant, who is self-represented though appeared with the assistance of an interpreter by audio-link.
First Respondent's submissions
It was submitted on behalf of the First Respondent that there is no jurisdictional error identified in any of the grounds.
The Tribunal, it was submitted, correctly identified that its satisfaction of the claim depended on whether the Applicant satisfied that he was a refugee as defined in article 1A(2) of the Refugees Convention. It correctly identified that the issue before it was whether the criterion specified in s.36(2) of the Act was satisfied. It was argued there was nothing to suggest that the Tribunal had wrongly construed the meaning of "persecution".
The Tribunal set out its understanding of the meaning of the word and significantly in the present case included a summary of the meaning of "serious harm" for the purposes of s.91R(2). Reference was made to the recent High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 (VBAO), and specifically the joint judgment of Gleeson CJ and Kirby J at [3] as follows:
“3.Both the immediate and the wider context make it plain that, in s 91R(2)(a), "threat" is used in the second sense. A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person's life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications. This accords with the view of s 91R(2)(a) that was taken by Marshall J in the present case, and by Crennan J in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs[1].”
Reference was also made to the decision of Gummow J in the same case at [18] as follows:
“18.Counsel for the appellant urged a reading of par (a) of s 91R(2) which would include a past or current communication of an intention to kill or deprive a person of liberty which, looked at objectively, is capable of instilling fear in the person and does so. The Minister supports the construction adopted by Marshall J, in particular that (i) threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve, (ii) the term "threat" connotes "risk" in the sense of danger or hazard, and (iii) the threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger. The submissions for the Minister should be accepted.”
The finding by the Tribunal that the Applicant was not at risk of persecution as defined in s.91R of the Act was claimed to be a finding open to the Tribunal and specifically a finding that the conduct complained of was not of sufficient seriousness to amount to persecution for the purposes of s.91R of the Act.
It was submitted that the question of whether particular conduct amounts to "serious harm" is a factual issue over which the Tribunal is the final arbiter (see Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 268 and 271).
It was further submitted that the Tribunal considered the question of the Applicant's membership of a social group as expressed by him and did so in a manner free of error. It was submitted that the authorities are clear that social group cannot be defined by what is feared but rather must be defined by some characteristic or attribute which is shared by the group which defines the group to its potential persecutors (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225).
It was argued the Tribunal dealt with the Applicant's claims that he was at risk of persecution due to being a member of a particular social group, namely a member of Indian Tamil men of Hindu religious background and lower caste in Malaysia. The Tribunal accepted the Applicant had suffered some low level ostracism and threats, but as the persecution did not amount to serious harm it found he did not fear persecution because of his membership of a particular social group.
It was further submitted that the Tribunal considered the Applicant's evidence concerning reporting of the incidents of alleged assault by his father-in-law to police, and did not accept the alleged incidents had occurred and found the threats were hollow. Accordingly, the Tribunal did not accept the Applicant was ever in need of or denied police protection.
It was submitted the Tribunal did not apply the concept of effective protection, nor did it wrongly decide the application on the basis of effective protection or err in the manner contended by the Applicant. It was open to the Tribunal to make its decision on the evidence before it.
In relation to the additional ground it was submitted that the Tribunal in fact considered the claim made by the Applicant that he had moved around to avoid his father-in-law and rejected that claim. It did so in a manner free of jurisdictional error and made a decision on the evidence which was open to it.
Reasoning
In my view the Tribunal has given careful consideration to the claims which it has recited in detail in its decision. It has done so in a manner free of jurisdictional error.
I accept the submissions for and on behalf of the First Respondent, that the Tribunal has correctly referred to the relevant law when considering the criterion specified in s.36(2) of the Act. It otherwise correctly identified that its task was one where it should decide whether it is satisfied the Applicant was a refugee as defined in article 1A(2) of the convention. Specifically, I accept that the Tribunal has accurately summarised the meaning of "serious harm" for the purpose of s.91R(2) of the Act.
The Tribunal’s findings of fact which in part accepted some of the allegations of the Applicant, were findings reasonably open to it on the evidence free of jurisdictional error. It was a matter for the Tribunal to make an assessment of the seriousness of the claims and to then determine whether they were of sufficient seriousness to amount to persecution for the purposes of s.91R of the Act.
I accept and apply the High Court authority in VBAO and, in particular, note the passages set out earlier in this judgment.
The Tribunal was entitled to take into account the fact that the Applicant had been married for a period of 16 years, and despite the alleged threats it made a finding reasonably open to it that it did not accept that "the Applicant was ever attacked or harmed by his father-in-law." It then went on to find that "any such threats were hollow". Significantly it made the following finding:
“The applicant also claims to have been threatened by other members of his wife's family, but when the Tribunal asked the applicant about this at the hearing, he did not claim that any family member other than his father-in-law had made any attempt to harm him at any time. The Tribunal finds that if the applicant received threats from other family members then such threats were hollow, as the applicant and his wife have been married since 1990 and the alleged threats have not resulted in any harm to the applicant. The Tribunal does not accept that such threats constitute serious harm within the meaning of s91R(1)(b) of the Act”
(Court Book p.128).
In relation to the additional ground, it is clear that the Tribunal recites the claim and specifically refers to the Applicant's alleged misunderstanding when he answered the question concerning his address on the application for a protection visa.
After reciting the claim the Tribunal then made a significant adverse finding reasonably open to it on the evidence, including the following:
“…The Tribunal finds that the applicant did not relocate his children to different schools every time he changed his place, putting them in the nearest school, because he has submitted in his post‑hearing submissions that his wife and children lived at the same address during the period he previously claimed that they had to move around frequently.
The Tribunal does not accept the applicant's claims that he and his wife had to move constantly to avoid being located by his father-in-law. The applicant has given conflicting evidence as to both his places of residence and his employment, with numerous inconsistencies about where he was living and working at different times. His evidence differs in significant regards in his protection visa application, in which he has stated his workplaces and addresses; at the hearing, where he contradicted his evidence regarding his workplaces and addresses; and again in his post-hearing submissions, in which he contradicts almost all of his prior evidence as to these matters. The Tribunal accepts the applicant may have difficulty in remembering dates and other minor details, but does not accept that this difficulty adequately explains the significant variations in the applicant's evidence as to where he lived and worked at different times.”
(Court Book p.129)
That conclusion was a conclusion in my view reasonably open to the Tribunal on the facts before it and it cannot be suggested it failed to take into account a relevant matter as suggested in the additional ground sought to be relied upon by the Applicant.
I further accept the Tribunal did properly consider the question of the particular social group and whilst accepting that the Applicant suffered what it described as "low level social ostracism and some threats" it otherwise did not accept and indeed specifically rejected other claims and ultimately concluded that the conduct complained of was not of sufficient seriousness to amount to persecution for the purposes of s.91R of the Act.
Specifically the Tribunal made the following finding:
“The Tribunal accepts that Indian Tamil men of Hindu religious background and lower caste constitute a particular social group in Malaysia, and that the applicant is member of this social group. As the Tribunal does not accept that the applicant suffered any of the harm, other than some low level social ostracism and some threats, that he claims to have suffered in the past in Malaysia, it follows that the Tribunal does not accept that he suffered serious harm for reason of his membership of a particular social group”.
(Court Book p.129)
Although I had some concerns about the manner in which the Tribunal defined the particular social group in this instance, by excluding from the definition the fact that the Applicant was a Hindu who converted to Islam and married a Muslim, that concern would not ultimately change the outcome of the application given that the Tribunal had not accepted the Applicant suffered serious harm by reason of his membership of a particular social group. Hence, if there was any deficiency in the manner in which the Tribunal defined the particular social group, it does not have any practical significance.
Conclusion
For the reasons given it follows that I am satisfied that there is no jurisdictional error and that the application should be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 April 2007
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