MZYLJ v Minister for Immigration
[2011] FMCA 505
•8 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYLJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 505 |
| MIGRATION – Refugee Review Tribunal – review of Tribunal’s decision – whether Tribunal failed to consider a Convention ground plainly raised on the evidence – whether resistance to police corruption amounts to imputed political opinion – review dismissed. |
| Migration Act 1958 (Cth), ss.414 and 430(1)(b) |
| Applicant v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 180 Minister for Immigration and Multicultural Affairs v Y [1998] FCA 515 V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 |
| Applicant: | MZYLJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1140 of 2010 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 10 December 2010 |
| Date of Last Submission: | 10 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Watters |
| Solicitors for the Applicant: | Asylum Seekers Resource Centre |
| Counsel for the First Respondent: | Mr W. Mosley |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application for review filed on 16 August 2010, as amended on
16 November 2010, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1140 of 2010
| MZYLJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 16 November 2010 the Applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) dated 19 July 2010, which decision affirmed an earlier decision of the First Respondent’s delegate to refuse to grant the Applicant a Protection (Class XA) visa.
Background
The Applicant is a 28 year old national from Malaysia who came to Australia on 1 September 2009. The subject application for a protection visa was filed on 4 January 2010, which application was refused by the First Respondent’s delegate on 8 March 2010 on the basis the Applicant was not a person to whom Australia had protection obligations. The Applicant’s review of that decision was heard by the Tribunal on 5 July 2010.
The Applicant claimed that he had a well founded fear of being persecuted because of the following background and experiences he had in Kuala Lumpur, Malaysia.
·Whilst employed by a bank selling credit card machinery, he came into contact with a corrupt businessman who sought to inveigle him into playing a role in the purchase of stolen goods.
·That businessman then introduced him to two corrupt police officers who explained to him that they were looking to sell drugs confiscated by the police.
·He resisted their attempts to recruit him for this role but in order to distract their overtures he introduced a friend to the police to undertake the role proposed for him.
·That friendship arose through common employment, at a time the Applicant says, the friend had a low profile in a gang.
·The friend proved successful in the activities sponsored by the corrupt police and it was said that he was making considerable amounts of money selling confiscated drugs to the underground market in Kuala Lumpur.
·The friend was killed, however, in a motor vehicle accident resulting in renewed efforts by the corrupt police to recruit the Applicant to step into the role undertaken by the Applicant’s friend.
·The Applicant says he, as he is a Buddhist, resisted this because of his moral standards and his desire not to be involved in any illegal activity; with the consequence that threats were made to him by the police and he feared for his welfare, and that of his wife and young daughter.
·
The corrupt police also insisted that he provide them with a list of his friend’s customers. They took him away and beat him up.
He was in fear of his life and bargained with them to release him on the promise that he would provide the list within a few days. He thereafter claimed to have gone into hiding and avoided contact with the police.
The Applicant resisted a suggestion that he report the actions of the corrupt police to the police fearing that by doing so he would “stir a hornet’s nest” and would place himself in danger having regard to the capacity of the police to hold people without charge for lengthy periods of time; particularly under national security legislation which allowed for two years imprisonment without charge. He was fearful that he would be physically assaulted in prison and was aware of prisoners dying in custody.
Grounds for Review
The amended application for review set out two grounds for review; namely:
(1) The Tribunal committed jurisdictional error by failing to conduct a review under s414 of the Migration Act 1958, in that it failed to consider the Applicant’s claim for protection on the basis of political opinion.
(2) Alternatively, if the Tribunal did consider the Applicant’s claim for protection on the basis of political opinion, the Tribunal committed jurisdictional [error] by failing to provide reasons within the meaning of s430(1)(b) of the Migration Act.
The Tribunal’s Decision
Before the Tribunal the Applicant contended that he suffered persecution because he was a member of a particular social group, being a Buddhist.
The only ground upon which the Applicant claimed to fall within the ambit of the Refugees Convention proffered by the Applicant at the hearing was that he was a member of a particular social group.
The Tribunal in its reasons addressed the issue of whether he was a member of a particular social group and for reasons fully articulated, and reasons which counsel for the Applicant in the hearing before me agreed with, found that he was not a member of a particular social group. Accordingly, the Tribunal found that there was no obligation under the Convention to provide protection to the Applicant.
In particular the Tribunal found at [139] “the claimed persecutors were motivated purely by private financial gain. The Tribunal finds that this was the essential and significant reason for the persecution feared by the applicant and not his membership of a particular social group or any other Convention based reason.”
The Tribunal went on further to state at [140] that:
At the hearing, the Tribunal asked the applicant to identify the ground or grounds under the Refugees Convention on which he relied for his claim fear of persecution. It was submitted on behalf of the applicant that he relied on the ground of membership of a particular social group. This was confirmed in written submissions made to the Tribunal after the hearing.
The applicant has not claimed persecution for reason of any other grounds under the Refugees Convention. The Tribunal has considered the claims made by the applicant and is satisfied that the applicant’s claims of persecution have no nexus to any other grounds under the Refugees Convention.
The Contentions
The First Ground
The first ground relied upon by the Applicant is based upon the contention that the Tribunal committed jurisdictional error when it failed to consider a claim that arose on the material before it, even if that claim was not expressly articulated by the Applicant. In that regard it was contended that there is a requirement to conduct a review of claims raised by the evidence even if those claims are not expressly articulated by the Applicant (see NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263). Further, it was contended, that the fact the Applicant’s claim was framed on the basis of membership of a particular social group does not remove the obligation to consider any claim arising from the material. The Applicant relied upon the observation of the Full Court of the Federal Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 180 at [49] when it said:
The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight.
It was the contention of the Applicant that the material before the Tribunal raised the possibility that the Applicant was persecuted by reason of his political opinion, actual or imputed. In support of that contention the Applicant highlighted various aspects of the evidence before the Tribunal, which I will come to shortly. The Applicant sought to rely on a number of authorities which related to positions taken by Applicants against corruption, which positions were said to be capable of being characterised as political opinion. In that regard I was referred to the following authorities by the Applicant: Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670; MZWAO and Anor v Minister for Immigration [2005] FMCA 407; Minister for Immigration and Multicultural Affairs v Y [1998] FCA 515; and V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355.
It was contended that the material plainly raised the possibility that the Applicant was persecuted by reason of his political beliefs as expressed by his refusal to participate in police corruption. The Tribunal’s failure, therefore, to consider whether the Applicant being persecuted by reason of his political opinion amounted to jurisdictional error. The Applicant highlights that the Tribunal never expressly addressed the question of whether the Applicant’s conduct could amount to the expression of a political opinion and whether he was persecuted as a result.
The Applicant contended that insofar as the Tribunal may have addressed the question it did so in a perfunctory way that suggests it did not give real consideration to the question. That alleged perfunctory treatment has been set out above in the quoted paragraph from the decision
(i.e. at [140]). The Applicant contends that for the Tribunal to exhibit the active intellectual process demanded in giving proper consideration to this ground it would be expected that the Tribunal would:·Refer to case law where the issue of when resistance to corruption will amount to an expression of political opinion;
·Make findings regarding the extent of corruption in the Royal Malaysian Police Force and whether such corruption could be regarded as systemic;
·Refer to the fact that, as a matter of law, it is possible for criminal conduct to have dual character; i.e. to be motivated by both Convention and non-Convention reasons at the same time; and
·If the Tribunal is satisfied that the Applicant’s conduct did not amount to the expression of political opinion or that the persecution against him cannot bear a dual character, to explain why that was so.
Clearly the decision of the Tribunal did not engage in the steps highlighted by the Applicant’s contentions and the Applicant therefore asked this Court to draw the conclusion that, in spite of its assertion otherwise, the Tribunal did not consider whether the Applicant might have been persecuted by reason of his political opinion.
Further the Applicant contends that the Tribunal’s finding that the persecution of the Applicant was “motivated purely by private financial gain” must be viewed in the light of the failure of the Tribunal to consider, properly or at all, whether the Applicant had been persecuted by reason of his political opinion.
In support of the Applicant’s contentions, I was referred to various documents submitted on behalf of the Applicant that were said to highlight systemic corruption in the Malaysian police force.
Such material highlighted the fact that in 2003 the Prime Minister of Malaysia, who was then the Internal Security Minister, announced the Royal Commission to review issues within the police force, such as corruption. In a preliminary report the Commission found that there were indications of corruption at every level.
There was also a reference to a report from a body called Rights of Malaysia which concluded that an independent commission into police misconduct was strongly recommended and that an Independent Police Complaints and Misconduct Commission was urgently needed to restore accountability. The Applicant also highlighted material that expressed the resistance of the police to an Independent Complaints and Misconduct Commission. There was also material highlighting deaths in custody and deaths of others when being apprehended by police.
It is to be noted, however, that the material relied upon by the Applicant in support of its general contentions about the conduct of the police was quite old and from my reading of it, it reflects issues which the Government of the day was addressing. This is significant, for reasons set out below, but suffice to say the material does not support, in my view, that corruption permeates Government “as to become part of its very fabric or that any opposition to corruption can be seen as opposition to the machinery, authority or governance of the State.”
Nor can it be said that the Applicant’s refusal to partake in corruption amounted to a “refusal to participate in a corrupt state system [that] can … be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the State.” In my view, the facts and circumstances of this particular case can be distinguished from those addressed in MZWAO which case related to the state of corruption in the Ukraine where there was, indeed, before the Court in that case significant material to substantiate a finding that a resistance to corruption could be seen as an expression or manifestation of political opinion as a refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the State.The First Respondent’s contentions first highlight that the majority of the cases relied upon by the Applicant in support of the view that resistance to corruption could amount to the expression of a political opinion were cases that involved an expressed anti-corruption stance from which flowed persecution. A distinction can be readily drawn in the instant case where the evidence of the Applicant himself was that he did not take an expressed and public stance against corruption. Indeed, he helped engineer its furtherance by referring his friend to the corrupt police to carry out what otherwise he may have been required to do.
I agree with the First Respondent’s contention when he claimed:
22.A claim which is not expressly advanced will not attract the review obligation of the Tribunal unless it is apparent on the face of the material for the Tribunal: NABE v Minister for Immigration and Multicultural Indigenous Affairs (No. 2) [2004] FCAFC 263. Such a test requires more than just a possibility, as the applicant contends. The claim now advanced did not arise from the material before the Tribunal, and was not apparent on the face of the material, and the Tribunal was not therefore obliged to consider it.
The case of Zheng which was relied on by the Applicant warrants further consideration. In that case the Applicant’s claim arose from exposure by him of corruption by his superior to the authorities. His Honour Merkel J considered a number of early authorities and relevantly concluded at paragraphs [32] – [34]:
32.The case law to which I have referred demonstrates that exposure of corruption can, in a wide range of circumstances, lead to political persecution. Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state. Likewise, refusal to participate in a corrupt state system can also be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the state. Also, as the recent Canadian decision in Kilnko demonstrates, exposure of systematic corruption may be an expression of “political opinion” even if the state is against corruption but is unable to protect the applicant from persecution on this account. In such a case, however, it may be difficult to establish that the exposure of corruption is a manifestation of a political act such as defiance of, or opposition to, the machinery, authority or governance of the state.
33.It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than any other form of opposition to, or defiance of, state authority or governance.
34.A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 268 and 284. In each case the question of whether a nexus has been established is a question of fact for the RRT.” (Emphasis added)
In my view there was no evidence or material before the Tribunal of any currency that the corruption of the two police officers in this case occurred in circumstances where corruption was such that “it so permeates Government as to become part of its very fabric”. There certainly was no evidence before the Tribunal that police corruption, although no doubt it exists as it does even in an Australian context, was tolerated by Malaysia.
A reading of the material before the Tribunal, and a fair reading of the Tribunal’s decision, can only lead, in my view, to a conclusion that there was no action on the part of the Applicant other than his rejection of the demands of the two corrupt police officers to participate in their criminal activities, that would impute to him an adverse political opinion. Such an imputation is not squarely raised on the material before the Tribunal nor is it raised by way of necessary implication.
I agree with the contentions set out in paragraphs in [28] – [32] of the First Respondent’s written contentions of fact and law. For the sake of form I will repeat those below:
28.In short, there was no material before the Tribunal which raised a claim to persecution based on imputed political opinion. No such claim was expressly made, and it is patent that the applicant did not view his conduct as political, and there was no material to suggest that the group so viewed it. Relevantly to the claim now made, nor did it arise clearly on the material before the Tribunal: NABE at [60]. There was no error on the part of the Tribunal in not considering the claim now made. The position was akin to that considered by Merkel J in Zheng, where his Honour stated:
“39.The difficulty with the applicant’s claims is that although he might have viewed his acts as “political” there was no material that suggested that the authorities had viewed, or might view, his acts in exposing Mr He as having any political aspect. In particular, the material and evidence provided by the applicant was bereft of any basis upon which the authorities might perceive his exposure of his superior’s corruption as a political act in any of the senses described in the cases to which I have referred. Thus, there was no material or evidence before the RRT that suggested that the Chinese authorities or for that matter, anyone else, perceived the conduct of the applicant to be resistance to, defiance of, or any threat to the authorities or the State or to have any other political aspect to it.
42.In summary, the material in evidence provided by the applicant in support of his application failed to reveal a causal nexus between his exposure of his superior’s corruption and the political persecution he claims to fear. Put another way, there is no material or evidence that raises the case that an actual or perceived political opinion has been attributed to the applicant by the authorities as a result of his exposure of Mr He’s corruption or by reason of his refusal to co-operate with Mr He in relation to his corrupt activities. Accordingly, the material relied upon by the applicant does not suggest that the authorities, Mr He or the officials in the Public Security Bureau responsible for the investigation of the applicant are doing so for any political reason or on the basis that they believe that there is any political aspect to the applicant’s conduct.” (Emphasis added)
29.In another case cited by the applicant, V v Minister for Immigration and Multicultural Affairs, the proposition was that where a person who have observed police misconduct informed on those police to the authorities and was in turn harassed by the police (in a situation where police corruption was endemic and tolerated by the state), such conduct could be viewed as political and fear of persecution could be accepted to be the basis of an imputed political opinion. Hill J said (at 367):
“32.The exposure of corruption itself is an act, not a belief. However it can be the outward manifestation of a belief. That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences. If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion …
33.It is not necessary in this case to attempt a comprehensive definition of what constitutes ‘political opinion’ within the meaning of the Convention. It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower than the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y (unreported, 15 May 1998) that the views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.” (Emphasis added)
30.In the present matter, the Tribunal considered the motivation of the persecutors and as a finding of fact, found that the group was motivated purely by private financial gain.
The Tribunal found that that was the essential and significant reason for the persecution feared by the applicant, and not his membership of a particular social group as claimed or any other Convention based reason. The Tribunal specifically found that it was satisfied that there was no other Convention nexus to the applicant’s claims. Importantly, there was no evidence before the Tribunal of the kind required and referred to in Zheng or V, that went to demonstrate that the Malaysian government itself was corrupt or condoned corruption.
31.The Tribunal’s finding that the essential and significant reason for the claimed persecution was financial gain, coupled with the finding that the claims raised no other Convention nexus is dispositive of the matter.
32.The applicant cites SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at [73 per Barker J],
as authority for the proposition that there can be an overlap between Convention grounds. No objection can be taken to that general proposition. However, relevantly to the Tribunal’s specific finding that the essential and significant reason for the claimed persecution was financial gain,
in SZMKK Barker J rejected a similar argument to that advanced in this case, that the Tribunal had failed to consider a political motivation for threatened harm.
His Honour found:
“77.So far as the son-in-law and his gang his concerned, there was nothing in the information before the Tribunal to suggest that he or it was motivated to threaten harm to the appellant because, to put it directly, the appellant constituted a political threat or because the political views of the appellant. While counsel for the appellant has ably constructed a scenario that might, in different circumstances, illustrate that a threat of harm could have both a “private and criminal” motivation as well as a Convention based motivation, there is no factual basis for that scenario in this case. In any event, I consider the tribunal’s finding of fact that the threat was of a personal or criminal nature borne of revenge necessarily rejects, on the facts of the case, the possibility it was politically motivated.” (Emphasis added)
In addition to there being no material, in my view, that clearly raises a basis for an imputed political opinion there is also the stand alone finding by the Tribunal that the motivation of the corrupt police was “purely for private financial gain.” It is a finding open to the Tribunal on the evidence presented.
Second Ground
The Applicant’s second ground that pursuant to s.430(1)(b) of the Act the Tribunal should have given reasons for rejecting the Applicant’s now contention that there was a Convention related ground not considered by the Tribunal, I am of the view that in circumstances as is outlined above where the Tribunal did not properly consider the prospect of a Convention related ground based upon imputed political opinion, there can be no sensible argument that reasons should be forthcoming. This ground has no merit.
Conclusion
For the above reasons, the Tribunal did not commit jurisdictional error in the sense discussed in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. The amended application filed on 16 November 2010 should be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 8 July 2011
0
9
1