MZYDC v Minister for Immigration - [2009] FMCA 555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYDC v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 555

MIGRATION – Refugee Review Tribunal – failure to consider claim – whether there was a misconstruction of the Convention.

Applicant:

MZYDC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1609 of 2008

Judgment of:

Riley FM

Hearing date:

4 June 2009

Date of Last Submission:

4 June 2009

Delivered at:

Melbourne

Delivered on:

25 June 2009

REPRESENTATION

Counsel for the Applicant:

John Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Richard Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 0803326 made on 4 December 2008.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 13 October 2006.
The first respondent pay the applicant’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1609 of 2008

MZYDC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Sri Lanka. She was born on

15 April 1939
and is now 70 years old. She arrived in Australia on

29 June 2006
as the holder of a visitor visa. She applied for a protection visa on 11 August 2006.
The applicant claimed to fear harm from the Sri Lankan authorities and from the Liberation Tigers of Tamil Eelam (“LTTE”) on the grounds of her actual or imputed political opinion, her Tamil ethnicity and her membership of a particular social group consisting of single, elderly, Tamil women.
The Tribunal accepted the applicant's claims that:
a)in mid-2004 she had rented out rooms in her home to two young Tamil men;
b)they disappeared on around the day the Foreign Minister was assassinated;
c)the police attended her house looking for the two Tamil men;
d)the tenants were not at home;
e)the police told the applicant to tell the tenants to report to the police when they returned;
f)the applicant assumed that the police thought that the tenants were connected with the assassination;
g)the police returned to the applicant's house about four or five days later and took her to the police station where they asked her to identify a number of men;
h)the applicant was taken to the police station a number of times to identify suspects;
i)the applicant was treated roughly by the police, who may have injured her shoulder by manhandling her; and
j)the applicant's house was searched in April 2006 in the context of a cordon and search operation.
The Tribunal did not accept that the applicant's claims that her tenants were LTTE operatives and did not accept the applicant's claims that the police had beaten her, or hit her with a rifle butt or put a pistol in her mouth. The Tribunal considered that the police were interested in the applicant because she might identify suspects rather than because of anything she had done herself. The Tribunal found that the cordon and search operation in April 2006 was not directed at the applicant and no harm came to the applicant as a result of it. The Tribunal did not accept that the applicant faced harm at the hands of the LTTE.

Ground 1

The first ground of review in the amended application filed on 7 May 2009 is:
[The Tribunal] failed to deal with an integer and/or element of the applicant’s claim and/or a relevant consideration being the applicant’s fear of persecution for reason of her poor mental health and failed to consider whether or not the applicant faced an increased risk of persecution on the Convention ground of race /ethnicity, due to her poor physical and mental health.
In a submission dated 22 August 2008, the applicant's solicitor argued that, because of the applicant's emotional and physical fragility, she was at additional risk of persecution in the form of ongoing harassment, threats, abuse and intimidation from the LTTE and the authorities because of her Tamil ethnicity, imputed political opinion and gender-based social groups. It was argued that, while such treatment might only amount to discrimination for a healthy, young person, the treatment described would be elevated to persecution for someone in the applicant's position.
More particularly, the applicant's solicitor said at page 4 of the submission:
… she is at increased risk of economic hardship threatening her ability to subsist due to difficulties associated with obtaining employment and access to services. Country information indicates that discrimination in accessing education, employment and government services, which would include hospital and medical facilities, is faced by all Tamils and in our submission [the applicant] would have greater difficulties due to her poor physical and mental health.
The Tribunal acknowledged the claim at paragraph 44 of its reasons for decision, saying that the applicant's solicitor:
submitted that the country information shows that the treatment of Tamils in Sri Lanka is appalling and that her poor physical and mental health would mean that her vulnerability to harm in Sri Lanka would be elevated to persecution because of these factors.
The Tribunal addressed that claim in paragraph 75 of its reasons for decision, saying that:
A contention which has been advanced in the claims is that, given the applicant's health, including mental health, treatment which may not amount to persecution in other circumstances, may be elevated to such in the applicant's case because of her emotional and physical fragility. The Tribunal has found that the applicant is not of interest to the security forces, she has passed through passport checks to go to India and to Australia in Sri Lanka without incident, in April 2006 her house was searched in a cordon and search operation in Wellawatte [an area of Colombo] without any incident, the prospect of her being even questioned by the security forces appears to the Tribunal to be remote. Under the circumstance the Tribunal does not consider that the question of the applicant's health is [a] question pertaining to a consideration of her situation under the Refugee Conventions.
The applicant argued at the hearing that the Tribunal had not considered that the discrimination and harassment that the applicant would face as a Tamil might be elevated to persecution by reason of the applicant's mental and physical fragility. The applicant argued that the Tribunal had only considered the applicant's imputed political opinion in paragraph 75 of its reasons for decision.
The first respondent argued that the applicant had stated at the hearing that all of her problems had stemmed from renting out a room to the two Tamil men. However, this does not mean that the applicant might not face serious harm in the future arising from the general discrimination experienced by Tamils in Sri Lanka. Nor does it operate as a withdrawal of the applicant’s other claims articulated by her solicitor.
The first respondent argued that the Tribunal in paragraph 75 of its reasons for decision did not confine its reasons to one or another of the grounds in the Convention. The first respondent noted that, in its conclusion, the Tribunal found that the applicant did not face a real chance of being persecuted for reasons of her race, or any other Convention ground.
The Tribunal's reasons in paragraph 75 primarily concerned the harm the applicant might face from the security forces. The Tribunal found that the applicant was of no interest to the security forces and had passed through passport checks without incident. The Tribunal considered that the prospect of the applicant being questioned by the security forces was remote.
The Tribunal also noted in paragraph 75 that the applicant's house had been searched in a cordon and search operation without any incident.

I take it that a cordon and search operation is indiscriminate in the sense that it is based on proximity to a crime. The Tribunal's finding that the search was not directed at the applicant, took place without any incident and caused the applicant no harm can only be taken as a finding that it did not amount to persecution on any Convention ground.
However, the Tribunal clearly did not consider in paragraph 75 of its reasons for decision or elsewhere the claim that:
discrimination in accessing education, employment and government services, which would include hospital and medical facilities, is faced by all Tamils and in our submission [the applicant] would have greater difficulties due to her poor physical and mental health.
In fact, the Tribunal concluded paragraph 75 by saying that the applicant's health did not pertain to a consideration of her refugee claims. This conclusion underlines the fact that the Tribunal did not consider whether discrimination in accessing health services, for example, by reason of the applicant's Tamil ethnicity, might be elevated to persecution by reason of the applicant's poor physical and mental health.
The first respondent did not submit that the claim set out in paragraph 15 above was incapable of succeeding. It seems to me that it is at least theoretically possible that discrimination in accessing health services, among other things, could be elevated to serious harm by reason of the applicant's physical and mental fragility. The Tribunal did not address this claim. Accordingly, the Tribunal’s decision must be set aside and the application must be remitted to the Tribunal for redetermination.

Ground 2

The applicant at the hearing before this court withdrew the second ground set out in the amended application filed on 7 May 2009.

Ground 3

The third ground of review in the amended application filed on 7 May 2009 is:
[The Tribunal] misunderstood and/or misconstrued the Convention test of well-founded fear of persecution on the ground of imputed political opinion in the circumstances of the case in rejecting any risk of harm faced by the Applicant by creating an artificial distinction between the interest of the authorities in the Applicant specifically and interest in her to identify suspects i.e. “because she might identify some persons”.
This ground was based on the following passages from the Tribunal’s reasons for decision:
65.The applicant has claimed that the two tenants of her Town E apartment disappeared on or around the day of the assassination of a prominent person, in fact the police came looking for them but they weren’t home and the applicant was told to tell them to report to the police when they returned. The connection between the assassination and the disappearance of the two tenants is a connection made by the applicant; she has also assumed that the police were looking for the two in connection with the assassination. Initially she claimed that the police returned to her house about four or five days later and accompanied her to the police station where they had collected a number of young persons for her to identify. The Tribunal reiterates that it does not accept that the two tenants were LTTE operatives; the fact that the police simply asked the applicant to tell them to report to the police when they returned indicates a level of interest not commensurate with the approach to LTTE suspects or potential murderers of a prominent person by the security forces. The Tribunal accepts that the applicant was taken to the police station to see if she could identify her, by now, former tenants. It also accepts that she may have been kept there for a whole day at one point. The evidence provided by the applicant relates to the police being interested in her because she might identify some persons, not because the police was interested in her specifically. She was never accused of any crime. The issue of how many times she was taken to police stations to attempt to identify people is problematic. The Tribunal gives the applicant the benefit of the doubt and accepts that she was taken to the police stations with the scope of identifying suspects a number of times. It also accepts that the police visited her place a number of times subsequent to taking her to the station. The Tribunal also accepts that she may have been treated roughly but, for the reasons given above, (i.e. the police were not interested in her specifically) it does not accept that she was beaten, that a pistol was put into her mouth or that she was hit with a gun. In relation to her claimed injury, the applicant said that she was not severely injured physically by the police and the Tribunal accepts that some kind of injury may have resulted from her being manhandled.
66.The Tribunal notes that the applicant left Sri Lanka on [date specified] and returned on [date specified] - she went to Country H for a [information deleted: s.431]. The applicant sold her Town E house on [date specified]. She does not report any further contact with the police or other security forces or any person involved in the Tamil cause. Although the exact date of the last time that she was asked to identify people is not known, it was before she left for Country H. The Tribunal does not accept that she was of interest to the police when she left for Country H because she was able to go through embarkation procedures unhindered. After this was put to her she has responded that because she was travelling in a ‘family’ group and with people with foreign passports the checks were not strict. The Tribunal is unable to reconcile her proposition that she would have been overlooked at the airport when leaving for Country H with the importance she places on her own role as a landlady of the Tamils which, in her view, has caused not only the police to visit her many times but also the LTTE to be suspicious of her. The Tribunal does not accept that the circumstances of her leaving would have diminished the attention she got at the airport. The Tribunal finds that the fact that she was able to leave Sri Lanka without incident indicates that she was of no interest to the police and confirms that she was simply being used to identify suspects.[1] (emphasis added)
[1] This passage has been taken from the Tribunal’s published decision and includes some alterations for publication purposes.
The applicant noted the applicant’s claim at paragraph 15 of a statutory declaration made on 20 August 2008 that the police had accused her of lying after she returned from India in January 2006 when she could not tell them the whereabouts of her former tenants. The applicant argued that the claim that the police thought she was hiding something gave rise to a classic case of imputed political opinion.
However, the applicant did not argue that the Tribunal erred by failing to consider that claim. When asked, the applicant’s counsel said that he did not wish to seek leave to amend the application to raise the ground that a claim of imputed political opinion had been overlooked. Rather, the applicant argued that, by overlooking that claim, in combination with the artificial distinction it drew between the police not being interested in the applicant specifically and the police wanting the applicant to identify suspects, the Tribunal misconstrued the Convention.
The applicant did not articulate what construction the Tribunal placed upon the Convention and how that construction was wrong. The argument was that, by drawing a spurious distinction, the Tribunal must have misconstrued the Convention.
The first respondent argued that the Tribunal drew the distinction as an aspect of its fact finding. The first respondent argued that it was open to the Tribunal to draw the distinction and the applicant was simply challenging the merits of the Tribunal’s decision.
It is well established that an error of fact, or a finding of fact based on questionable reasoning, would not generally amount to jurisdictional error. However, the applicant’s argument is that the Tribunal’s misconstruction of the Convention is demonstrated by the artificial distinction it drew while finding the facts. I accept that, if the Tribunal, in finding the facts, did draw a distinction that was not open to it under the Refugee Convention that would indicate a misconstruction of the Convention.
It seems to me that the reasoning of the Tribunal was as follows:
a)the police were not interested in the applicant because of anything she had done;
b)the police were only interested in the applicant because they wanted her to identify suspects;
c)because the police only wanted the applicant to identify suspects, and had no concern about anything she had done herself, the police would not have beaten her, put a pistol in her mouth or hit her with a rifle butt;
d)the only harm the applicant suffered in the past at the hands of the police was a minor shoulder injury from being manhandled;
e)the fact that the police were not interested in the applicant for anything she had done herself, as opposed to her possible ability to identify suspects, was confirmed by the fact that she had been able to go through the embarkation procedures unhindered to leave Sri Lanka for India in 2005 and for Australia in 2006;
f)because the police only wanted the applicant to identify suspects, she did not face a real risk of harm in the future.
I consider that, if the Tribunal had been mindful of the applicant’s claim that the police thought that she was lying about not knowing the whereabouts of the suspects, the Tribunal might have concluded that the police did beat her and otherwise mistreat her. The Tribunal might then have concluded that the applicant had experienced serious harm in the past and might experience such harm in the future.
The Tribunal’s reasoning and fact finding on this issue might be questionable, and it might involve the overlooking of a claim (which, in itself, the applicant did not wish to rely on). However, the distinction between being wanted by the police for an offence, and being asked by the police to give evidence, is a legitimate distinction. I cannot see how it involves a misconstruction of the Convention, even when combined with the overlooking of a claim.
This ground is not made out.

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

Associate: Ashika Kanhai

Date: 25 June 2009