MZYBH v Minister for Immigration & Anor

[2009] FMCA 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYBH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 212

MIGRATION – Judicial review – appeal of Refugee Review Tribunal.

MIGRATION – Judicial review – failure to consider risks – failure to consider protection – convention related risk.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 78 ALJR 678; (2004) 77 ALD 296

Applicant: MZYBH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 831 of 2008

Judgment of: Riethmuller FM

Hearing date: 4 December 2008

Date of Last Submission: 4 December 2008

Delivered at: Melbourne

Delivered on: 27 March 2009

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: MSC Legal Services

Counsel for the Respondents: Mr S Moore

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That a writ of Certiorari issue quashing the decision of the second respondent made on 28 May 2008.

2. That a writ of Mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 831 of 2008

MZYBH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Macedonia and arrived in Australia on 19 August 2007.  On 28 September 2007, he applied for a protection visa, which was refused by a delegate on 29 October 2007.  The applicant applied for a review by the Refugee Review Tribunal, which was refused.  The relevant refusal decision was signed on 28 May 2008.  The applicant seeks judicial review of that decision.

2. The applicant’s claim is based upon him being an ethnic Albanian Muslim, which he says left him exposed to discrimination and attack by Orthodox Macedonians.  There were two significant incidents that the applicant relied upon, working in a shop that was bombed in 2001, and attacks upon his home by unknown persons throwing rocks.

3. The Tribunal’s decision contains 55 paragraphs, although para.22 runs from pp.4 to 26.  The relevant findings and reasons are set out in paras.23 to 55, which are the last 7 pages of the decision.

4. At para.4, the delegate relevantly identified that the applicant claimed that persons had been throwing rocks at his home since 2001 and even on 2 or 3 occasions since he had been in Australia (his family having remained).  He stated that the State would not offer him any protection and that the police were not being proactive with respect to the stone-throwing incidents or damage to his car. 

5. The applicant’s case at judicial review was that the Tribunal failed to adequately deal with the issue relating to the stones being thrown at the applicant’s home in three respects:

   a)That the Tribunal, whilst not accepting all of the circumstances relating to this claim, failed to ask itself whether there was a reasonable risk to the applicant;

   b)That the Tribunal failed to properly consider whether or not the State was able to provide the appropriate level of protection; and

   c)That the Tribunal’s reasons with respect to whether or not the rock throwing was ‘convention related’ was so illogical as to demonstrate a lack of understanding of the test to be applied.

Ground 1

1. The Tribunal’s reasons on the first issue (assessing the risk to the applicant) are disjointed.  The relevant passages, in the order in which they appear in the decision, are:

   35.    …The Tribunal considers that in light of the country information showing that the situation has improved for ethnic Albanians in Macedonia, the applicant does not have a well-founded fear of persecution were he to return to Macedonia now or in the reasonably foreseeable future.

   36.    Given that the Tribunal does not accept that the applicant has a well founded fear of persecution on his return to Macedonia it follows that the Tribunal does not accept that there is a real chance that he will be persecuted now or in the reasonably foreseeable future…

2. However, in para.36 the Tribunal then turns to make findings with respect to the rock-throwing incident, saying:

   36.    …As put to the applicant  at the third hearing, his wife and children continue to live in Bitola and apart from the applicant’s claims that there are people throwing rocks at his home and that his car was damaged, the applicant has not reported any further instances of persecution, or targeted and systematic discrimination.  Furthermore, the Tribunal notes that the applicant himself stated that he could not be sure that those throwing the rocks were not acting with criminal intent, outside any racial or religious motivation.

   37.    In the case of the applicant’s claims that unidentified person had thrown rocks at his windows in Macedonia, the Tribunal has limited information that would suggest that such acts were motivated by racial hatred or hatred of any particular religion.  This is particularly so as the applicant was not aware of the identity of the perpetrators.  In the third hearing the applicant stated that he had not witnessed who the perpetrators may have been, even though they called out “Albanians, Albanians”.

3. The Tribunal touched upon this again, in paragraph 40, saying:

   40.    …however, as the Tribunal has put to the applicant, it is uncertain that the rock throwing incidents were politically or religiously motivated or that they constituted instances of “serious harm”. …

4. Thereafter, the Tribunal appeared to focus on questions of the availability of an effective police and justice system before turning at paras.43 to 45 to matters that would affect the applicant’s credibility.  In para.46, the Tribunal says:

   46.    The Tribunal also places significant weight on the fact that the applicant returned to his home country without difficulty in 2006 although the Tribunal acknowledges that the applicant appears to have had some periods of unemployment during this time and that the rocks were still being thrown at his home.

5. Para.47 appears to deal with the bombing of the shop, at least for the first third of the paragraph, before going on to summarise country information from the US State Department Report on Human Rights Practices in Macedonia in 2006.  The paragraph, however, ends with these sentences:

   47.    …The Tribunal has assessed the applicant’s claims both individually and cumulatively but does not accept that there is a real chance that the applicant would suffer serious harm amounting to persecution now, or in the reasonably foreseeable future, for reasons of his religious beliefs or ethnic background should he return to Macedonia.  Furthermore, the Tribunal find that the applicant does not have a well-founded fear of persecution in Macedonia for a Convention reason.

6. At para.48, the Tribunal then returns to the questions concerning the bombing incident and in para.50 rejects the likelihood of the applicant being exposed to similar incidents in the future.  The context of para.50 makes it appear clear that it relates to the bombing incident.

7. After discussing damage to the applicant’s car at the beginning of para.51, the Tribunal returns to the rock incident, saying:

   51.    …The Tribunal also accepts that the applicant may have had episodes of rocks thrown at his home, however it appears that the applicant’s family continues to live in that home and the instances have diminished to two or three times according to the applicant’s evidence at hearing held on 26 May 2008, since the applicant has been in Australia most recently.  As such, the Tribunal does not find that such actions are Convention related.

8. The substance of the submissions from the applicant with respect to this issue are that the Tribunal has ultimately accepted that there have been multiple incidents of rock-throwing at the applicant’s home, and that there is circumstantial evidence outlined in para.37 to suggest that it is racially or religiously motivated.

9. Whilst the Tribunal appears to have concluded that the evidence was not sufficient to persuade it that the violence was of the type covered by the Convention, the applicant argues that the Tribunal has failed to consider it in terms required by the principal set out in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43:

   [60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

   [61] The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at para191):

   "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself."

   Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity.

   [62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

   [63] Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".

   [64] In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

   [65] Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.

   [66] None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a Convention reason. But the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings. If the RRT's reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s430(1)(c) of the Migration Act.

   [67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

10. Counsel for the Minister says that whilst the reasons of the Tribunal do not appear to flow logically from one topic to another, when taken as a whole they demonstrate that the Tribunal had reached a conclusion sufficiently firm that did not need to go on to consider the possibility that its findings were wrong in order to properly assess whether the application had a well founded fear of persecution. 

11. It appears to me that the disjointed nature of the Tribunal’s reasons adds weight to the applicant’s argument. In para.40, the Tribunal clearly expressed its uncertainty about the convention reasons and whether the harm was sufficient to fulfil the relevant test. Rather than then proceeding to consider the level of risk, the Tribunal moved on to consider the level of police protection. It appears that rather than first assessing the actual risks before considering the level of protection, the Tribunal have collapsed the different elements into one general consideration. As a result, the Tribunal have not undertaken the tasks required by the legislation.

Ground 2

1. The second ground in this case relates to the Tribunal’s findings with respect to state protection.  It is appropriate to commence by considering the comments the Tribunal made with respect to the law on this issue.  The Tribunal, in a standard introduction, said:

   13. … The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   …

   17.  In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

2. The Tribunal returned to the law on this issue at para.42, saying:

   42.  It is not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure is due to a shortage of resources.  What is required is State toleration or condonation of the persecution in question and systematic discriminatory implementation of the law: see MIMA v Khawar (2002) 201 CLR 1, per Gleeson CJ at [26] and per McHugh and Gummow JJ at [84] to [87]. It is also relevant that what is required of the State is not an absolute guarantee of protection. However, the State is obliged “to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system”, per Gleeson CJ, Hayne and Heydon JJ in MIMA v Respondents S152 of 2003 (2004) 205 ALR 487 at [26].

3. The relevant facts on this issue commence in the middle of the very lengthy para.22 at the bottom of p.22 of the decision, where the Tribunal says:

   22.  …The Tribunal also observed that while the police could be inept and abusive, the country information indicated that in fact the police did not discriminate in their overall attitude towards the public and did not target Albania systematically.  The applicant conceded that Macedonians could also have been involved in abusive incidents by the police, however, he considered that it was mainly the Albanians who were affected most.  The Tribunal asked whether there were other examples of instances where the police had not been helpful to him.  The applicant stated “if the police don’t help you where else can you go”.  The applicant stated that he had reported the throwing of the stones at his home to the police on numerous occasions but they had not even bothered to attend.   

1. The Tribunal commences its consideration of the application of the test in this case at para.40, where it says:

   40.  The Tribunal has taken into account the applicant’s claims that the police are not doing anything to protect him from those throwing rocks at his house, however, as the Tribunal has put to the applicant, it is uncertain that the rock throwing incidents were politically or religiously motivated or that they constituted instances of “serious harm”.  In terms of access to an appropriate legal system, and whether the state would withhold protection on the basis of the applicant’s race and nationality, the country information indicated that the applicant would have recourse against criminal damage in the courts as the judiciary was known to be independent of the government [see The US State Department Report on Human Rights Practices, Macedonia, 2006].

2. The Tribunal then returns to incidents from 2001, and the applicant having testified in respect of those incidents, before returning to country information and recounting:

   41…While the applicant has argued that the military judicial system did not always reflect the reality in civil society, the Tribunal considers that this example, together with other country information, indicates that applicants, regardless of their race, nationality or religion can access the legal system in Macedonia. …

3. The Tribunal then goes on to find that there are problems of police mistreating suspects, but that the police abuse appears to be directed at persons of all ethnic backgrounds.  How this affects access to police protection in the context of this case is not clear.

4. Finally, at para.51, the Tribunal returns to this point, saying:

   51.  …Furthermore,  the evidence suggesting that these instances of criminal damage could be pursued in the courts, even though the Tribunal accepts that the applicant’s funds are limited and in practice he might be reluctant to do so.

5. How the applicant could do this without knowing the identity of the offenders is not addressed. It indicates that the Tribunal was considering this issue as an abstract question, not a question that had to be addressed within the factual matrix of this case. I therefore find this ground is made out.

6. The applicant also says that the passages indicate that the Tribunal was confused as to the test to be applied and this was, in reality, a case requiring the application of the tests set out in Minister for Immigration and Multicultural Affairs v Respondents S152/2003[2004] HCA 18 (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 78 ALJR 678; (2004) 77 ALD 296, as recounted at the end of para.42, yet this is inconsistent with the statement of the Tribunal at the commencement of paragraph 42.

Ground 3

1. The substance of ground 3 focuses on the Tribunal’s reasoning at para.51 where the Tribunal accepts that there may have been episodes of rocks thrown at the applicant’s home, but in light of the fact that the applicant’s family continues to live in the home and the number of incidents have diminished to only 2 or 3 occasions since August 2007, the Tribunal appears to have found that such actions are not ‘Convention related’.  It is difficult to understand how this evidence, in the context of this case, would demonstrate the motivation for the rock throwing.  Perhaps the Tribunal may have been addressing whether the applicant faced a real risk and perhaps intended to say ‘Convention risk’ rather than if it was a risk that was ‘Convention related’.

2. Counsel for the Minister argues that the motivation for the attacks had been addressed earlier in the decision and that those earlier passages, although interspersed in other paragraphs, should be read together with the comments in para.51 as the basis for the conclusion the Tribunal reached.

3. However, the structure of the reasons does not make it clear how the Tribunal approached this part of its task, nor whether it did so appropriately.  As a result, the application succeeds on this ground.

4. I therefore allow the application and order the issue of constitutional writs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Robin Smith

Date:  25 March 2009