SZKKL v Minister for Immigration - [2007] FMCA 2066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2066

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKKL”

Migration Act 1958 (Cth), ss.91X, 91R(2)

Attorney General (NSW) v Quin (1990) 17 CLR 1
Chan v Minister for Immigration & Ethnic Affairs (1983) 169 CLR 379
Hope v Bathurst City Council (1980) 144 CLR 1
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55
NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration & Citizenship [2007] HCA 40

Applicant:

SZKKL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1026 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

13 November 2007

Delivered at:

Sydney

Delivered on:

14 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser (on a direct access basis)

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron Lawyers

ORDERS

The application filed on 28 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1026 of 2007

SZKKL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The applicant is a 51 year old man from Guinayangan in the Philippines. He claims to speak, read and write English and to have had fourteen years of formal education including four years at university where he was awarded a Bachelor of Science degree. For six years before he arrived in Australia he lived in Fairview Park in Quezon City and worked nearby at DMJ Reality. He claims to be an active supporter of Partiust Bayan and has attended demonstrations in support of it over the last 10 years. The applicant received physical threats during those activities.
The applicant claims that he has been consistently discriminated against in relation to “normal economic benefits and opportunities” and that he had to keep his homosexuality repressed. He believes that his perceived sexuality was a reason for refusal of employment. He states that he is obliged to live in conformity and is unable to freely and openly have same sex relationships. He states that his family is aware of his homosexuality. They have to some extent ostracised him, resulting in a lonely and marginalised existence.
The applicant arrived in Australia on 26 August 2006 and applied to the for a Protection (Class XA) visa on 5 October 2006. A delegate of the first respondent refused to grant a visa on 13 November 2006 on the basis the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The applicant applied to the Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 15 February 2007 (reference 061000497). The application before this Court seeks judicial review of that decision and raises three grounds of review:
(a)serious harm issue;
(b)assault by brothers issue; and
(c)relocation finding issue.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. “That document was read into evidence”.

Consideration

Mr Zipser, appearing for the applicant, indicated that he relied on the grounds of the application filed on 28 March 2007, which was prepared by the applicant himself. Mr Zipser stated that his written submissions adopted the grounds and redrafted the claims to clarify their meaning and identify discrete narrow points. Consequently, an amended application had not been filed in accordance with the orders made on the first Court date of 18 April 2007.

Ground one – serious harm issue

Mr Zipser’s submissions redrafts the ground in the following form:
The Tribunal accepted that the applicant had stones thrown at him on one occasion and was asked to disrobe by police officers on another occasion, but found that these events were not serious or frequent enough to amount to persecution for a convention reason. The applicant said that the incidents concerning stone throwing and the police officer was serious harm and the Tribunal fell into jurisdictional error in finding otherwise.
Mr Zipser states that the applicant complains about an incident involving stone throwing and another involving disrobing. The Tribunal accepted the claims and specifically found:
The Tribunal accepted that on one occasion he had stones thrown at him and he was laughed at because he was gay and on an another occasion the police searched him, asked him to disrobe and he felt that they were prying on him because he was gay. (CB 127.5).
However, the Tribunal then found:
While accepting that the applicant has experienced over the last 30 years of living in the Philippines some isolated incidents of discrimination, the Tribunal has not been able to satisfy itself that this was systematic or frequent discrimination or harassment or that it was condoned by the State or the Roman Catholic Church. Indeed, from the claims made by the applicant, the Tribunal does not accept that the applicant’s experience in the Philippines, while in some senses were unfortunate and on several occasions amounted to limited discrimination, the Tribunal has not been able to satisfy itself that this was serious harm, amounted to persecution for a convention reason. (CB 127.6).
Mr Zipser submits that the applicant makes the following complaints about this finding:
(a)The Tribunal found that it “has not been able to satisfy itself that this was serious harm amounting to persecution”. Mr Zipser applicant argues that:
(i)whether or not harm is sufficiently serious to constitute persecution is a question of law; and
(ii)if the Court agrees with the proposition in (i) it is open to the Court to find that the harm suffered by the applicant was sufficiently serious to constitute persecution, in which case the Tribunal erred in finding otherwise.
(b)The Tribunal found that it “has not been able to satisfy

itself that this was systematic or frequent discrimination


or harassment”. Mr Zipser argues that discrimination or


harassment need not be “systematic or frequent” to


constitute persecution. The Tribunal, in finding that


discrimination or harassment must be “systematic or


frequent” to constitute persecution, has misunderstood the


law, giving rise to jurisdictional error.
In support of these contentions Mr Zipser referred to Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55 at [88] where McHugh J said:
88.The Full Court also held that Katz J erred in not finding that the Tribunal had erred in law by holding that "systematic persecution" is necessary to establish refugee status.
His Honour then said at [92] of that decison:
92.The phrase "systematic conduct" has its origins in the ex tempore judgment of Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs. In the course of considering a submission by the applicant for judicial review that the decision of the decision-maker was unreasonable in the sense in which that word is used in s5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), Wilcox J said:
"[T]he fear must be one of being 'persecuted', for a particular reason. The word 'persecuted' suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances."
(Citations omitted)
His Honour noted that he had also referred to “systematic conduct” in Chan v Minister for Immigration & Ethnic Affairs (1983) 169 CLR 379 at [94]-[95]:
94.In the course of explaining that it is not necessary that the conduct complained of be against a person as an individual, I said that a person "may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment". I supported this proposition by reference to Murugasu. In the course of explaining that it is not a necessary element of "persecution" that an individual be the victim of a series of acts, I said:
"A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention."
95.The use of the term "systematic conduct" has proved unfortunate. Tribunals have read it as meaning that there can be no persecution for the purpose of the Convention unless there was a systematic course of conduct by the oppressor. That was not what I meant by using that expression in Chan. I used it as a synonym for non-random, and I think that in Murugasu Wilcox J intended to use it in the same way.
(Citations omitted)
In Chan at [99]-[100] McHugh J summarised the meaning and legal status of the term “systematic conduct”:
99.It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic." The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.
100.Given the misunderstanding that has arisen from using the term "systematic conduct", it is probably better to refrain from using it in a Convention context. But if it is to be used, those who use it should make it clear that they are referring to "non-random" acts; otherwise, they run the risk of making a legal error.
Mr Zipser submits that the Tribunal had used the term in an impermissible way to suggest that the harm needs to be systematic in order to constitute persecution.
Justice Kirby in Haji Ibrahim at [192]-[193] also discussed the notion of systematic conduct:
192.The notion of systematic conduct could only be incorporated in the Convention definition if it is taken, in some way, to be inherent in one of the words of that definition. The suggestion is that it is somehow involved in the idea of "persecution". A measure of support for that suggestion may be found in the reasons of McHugh J in Chan v Minister for Immigration and Ethnic Affairs. There, his Honour said:
"The notion of persecution involves selective harassment. ... As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention."
His Honour went on in terms that indicate that the degree of "system" in the conduct envisaged might be highly attenuated:
"The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution".
In his reasons in this appeal, McHugh J has qualified these statements, when read literally.
193.A random, isolated act of violence suffered by Mr Haji Ibrahim, or a group of which he was a member, would not, alone, qualify as "persecution". On the other hand, it would be a mistake to import into the notion of "persecution", as an essential ingredient of that term, the order and system that has frequently been present in modern examples of "persecution" in Europe. Correctly, the Full Court differentiated between the ways in which the word "systematic" is used as a matter of ordinary English expression. At least so far as it implies regular or methodical oppression of the victim, the notion of "systematic" conduct is a possible, but not a necessary, element in the idea of "persecution". In effect, to impose that criterion as an element of "persecution" in the context of Somalia would be to impose upon the whole world a Eurocentric view about "persecution" as that notion is used in the Convention, which is now of universal application.
(Citations omitted)
Mr Mitchell, for the first respondent, submits in relation to ground one that the Tribunal clearly considered the definition of serious harm in s.91R(2) of the Migration Act 1958 (Cth) (“the Act”) and made particular reference to:
(a)the applicant’s evidence that he did not claim to be hurt in the relevant incidence (CB 127.5); and
(b)the only serious harm he claims to have suffered in the Philippines over a 30 year period was at the hands of his brothers (CB 127.8).
The Tribunal was not satisfied that the applicant was subjected to serious harm in following the incidents:
(a)a person throwing stones at the applicant (CB 127.7); and
(b)the police requesting the applicant to disrobe as part of an investigation.
Mr Mitchell submits that “serious harm” is defined s.91R(2) of the Act with a list of examples. Therefore, in order for the Convention to apply the persecution must involve serious harm as described in s.91(2). It is submitted that it is not an exhaustive list but merely it enumerates a number of examples or instances of serious harm. Mr Mitchell also referred the Court to Ibrahim at [55]. Mr Mitchell contends that McHugh J observed that it is impossible to define the outer limits of persecution because there are so many varied forms, notwithstanding the examples given in s.91R(2).
Mr Mitchell then referred to Hope v Sydney City Council (1980) 144 CLR 1 where Mason J considered the meaning of the word “business” used in a particular statutory provision. His Honour considered the ordinary meaning of the word “business” where the definition determines whether certain activity constitutes a business or not. That was found to be a question of fact and not a question of law.
The question in this matter is whether the throwing of stones and the police request to disrobe constitutes serious harm. It is submitted that one administrative decision-maker may find that such instances do constitute serious harm while another might not. Mr Mitchell submits that in the present case, the Tribunal’s reasons give a very brief and insubstantial summary of what the actual claim involved. He also submits situation that while having stones thrown at a person could be a very serious matter, it could also be a form of mockery and not something which results in physical injury. I note that the applicant conceded that he had not been physically injured by that incident or by being asked to disrobe by the police.
For Mr Zipser’s argument to succeed, it would be necessary to establish that both incidents were matters of serious harm. Mr Mitchell argues that in the absence of a legal test as to what are the outer limits of persecution and what constitutes serious harm, the question is one of fact and not of law. The Tribunal accepted that the applicant had experienced, in 30 years of living in the Philippines, some isolated incidences of discrimination. However, the Tribunal was not able to satisfy itself that this was discrimination or harassment which was condoned by the state or the Roman Catholic Church.
Mr Mitchell submits that this finding was open to the Tribunal, as a finding of fact and does not give rise to a question of law: Hope v Bathurst City Council (1980) 144 CLR 1. Mr Mitchell acknowledges that although an alternative inference may have been open on the facts before the Tribunal, it did not adopt that inference. Further, it is submitted that it is not the function of this Court to review the fairness of the factual findings of the Tribunal: Attorney General (NSW) v Quin (1990) 17 CLR 1 at [35]-[36].
The applicant made certain qualifications and concessions in his evidence to the Tribunal about the extent and severity of the harm. Ultimately, it is a question for the Tribunal to determine as a question of fact whether the claimed incidents amount to serious harm.

Ground Two – “assault by brothers issue”

Mr Zipser’s written submissions redrafted this ground in the following form:
The Tribunal accepted that the applicant had been physically assaulted by his brothers, but was unable to be satisfied that essential and significant reasons for this was persecution for a Convention reason.
The Tribunal recorded the applicant’s complaint as follows:
The applicant claimed that he was always hit by his brothers and other relatives. The Tribunal asked the applicant when the last time he was hit by his brothers was and he replied “In July 2006”. Asked what happened, the applicant claimed that he always could not get up because of the blows. Asked if he had fled, the applicant claimed he was unable to runaway. In view of this, the Tribunal asked him how and he was able to escape and he claims that his brothers asked him not to do it again so he agreed in order to survive. (CB 124.8)
The Tribunal accepted that the applicant was physically assaulted by his brothers, but found that these assaults did not constitute persecution for a Convention reason:
Based on the claims made by the applicant, while accepting that he had been physically assaulted in the past by his brothers, the Tribunal is satisfied that if he had a well found of fear of serious harm from his brothers for a Convention reason because of his homosexuality, then he would have reported the matter to the police or moved elsewhere in the Philippines in order to prevent a further [reoccurrence … ] the Tribunal has been unable to satisfy itself that the essential and significant reason for this was persecution for a Convention related reason. (CB 128.3)
Mr Zipser argues that the Tribunal fell into jurisdictional error in finding that it was “unable to satisfy itself that the essential and significant reason for this was persecution for a Convention related reason”. Specifically, the applicant stated that the reason he escaped further beatings was because “his brothers asked him not to do it again so he agreed in order to survive”. Mr Zipser submits that it is open to the Court to conclude that the Tribunal failed to have regard to this evidence giving rise to jurisdictional error.
Mr Mitchell in his written submissions noted that the applicant informs the Tribunal that he had experienced isolated incidents of discrimination or harassment over a 30 year period however he did concede that:
(a)that the only incident of serious harm was at the hands of his brothers;
(b) he had not reported this alleged harm to the police;
(c) had not sought to avoid that harm by relocating; and
(d)he had not provided any corroborative records that supported the claim to have suffered previous harm at the hands of his brothers.

Mr Mitchell argues that the Tribunal’s finding of non-satisfaction was not perverse or otherwise unreasonable and therefore not reviewable by this Court. Mr Mitchell contends that to establish that the finding was unreasonable carries a very high burden for the applicant. In NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27], Gray, Moore and Weinberg JJ stated:
27.It must be recognised that it is much easier to judge the reasonableness of a decision-maker's conclusion as to a jurisdictional fact when that conclusion is a positive one than when it is negative. Cases such as R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, which expounded the principle that a statute making the decision-maker's satisfaction as to the existence of a particular fact the foundation of jurisdiction were to be construed (in the absence of a privative clause) as requiring satisfaction based on reasonable grounds, concerned decisions based on positive satisfaction as to the threshold issue. Section 65 of the Migration Act is somewhat different. By s 65(1)(a), the Minister (an expression which, for this purpose, includes a delegate of the Minister and the Tribunal) is required to grant a visa if satisfied that a particular applicant has met the criteria there listed. By s 65(1)(b), the decision-maker is required to refuse the visa if not so satisfied. The requirement of satisfaction is applied in respect of the ultimate issue, and not in respect of a threshold fact which, if it exists, would give rise to jurisdiction. In that context, it is relatively easy to see how it might be established that the achievement of the requisite level of satisfaction could be judged against a standard of reasonableness. The question is unlikely to arise at the practical level, however, because the result will have been the grant of a visa. It is much more difficult to see how a failure to be satisfied can be judged according to a standard of reasonableness, because the converse of an unreasonable failure to achieve the level of satisfaction is that a reasonable decision-maker would have achieved that level. For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.
Mr Mitchell also referred to Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] and [147]:
137.… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
147.The fact-finding and reasoning of the Tribunal are discussed in the judgment of the Chief Justice and McHugh J. They show that its decision was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. That other decision-makers may have reached a different view, and have done so reasonably, is not to the point.
Mr Zipser argues that the Tribunal failed to have regard to the evidence. However the Tribunal did describe the applicant’s claim, in particular his claim that his brother had asked him not to “do it again”. The applicant stated that he agreed in order to survive. Despite this, he conceded that he had not reported the assaults to the police or attempt to move away from his family. Nor did the applicant attempt to submit any evidence, such as medical reports, to support his claim. The Tribunal did note that the applicant claimed that “he could almost not get up because of the blows”. I am satisfied that a finding of non-satisfaction was open to the Tribunal on the limited evidence that the applicant put to it. Further, the burden to establish that the Tribunal’s finding was unreasonable has not been discharged by the applicant: NAAH of 2002.

Ground three – “relocation finding issue”

The applicant says that the Tribunal’s relocation finding was not a separate an independent finding on which the Tribunal’s decision can be based.

Mr Zipser referred to the following passage in the findings and reasons:
…the Tribunal is satisfied that if for any reason he did not wish to return to live near his brothers as he has in the past, then it would be reasonable for him to relocate elsewhere in Quazon City or the Philippines in safety and does not accept that there is a real chance of being subject to harm from any source including his family if he did, and the Tribunal does not accept his claim made at the hearing his family was monitoring everywhere he goes, let alone they would have had the interest or capacity of doing so. (CB 128.3)
Mr Zipser submits that the Tribunal’s relocation finding was not a finding separate from those in relation to grounds one and two.
Mr Mitchell submits that the Tribunal took the following into account when determining the applicant’s ability to relocate.
(a) The fact that he was educated.
(b)That he had little trouble in obtaining employment (except for his refusal of employment with Philippine Airlines).
(c) He had successfully operated his own business.
Mr Mitchell contends that the Tribunal’s relocation finding was open to it on the evidence before it and constituted a proper approach to the question of relocation. In support, Mr Mitchell referred to SZATV v Minister for Immigration & Citizenship [2007] HCA 40 and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [440]-[441]. In SZATV at [10], Gummow, Kirby, Hayne, Callinan & Crennan JJ said:
10.In Randhawa, after referring to the text of the Convention relating to the Status of Refugees ("the Convention") and in particular to that part of the definition of the term "refugee" in Art 1A(2), Black CJ said [3]:
"Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders."
As both grounds one and two are based on the Tribunal rejecting the applicant’s claims on the ground of non-satisfaction, the Tribunal found that the applicant could relocate to avoid further harm from his brothers and relatives. I am satisfied that the relocation finding is a separate and independent finding on which the Tribunal decision was based. The evidence placed before the Tribunal permitted that decision to be made and constituted a proper approach to the question of relocation.

Conclusion

I am satisfied that neither of the grounds contained in the further amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 14 December 2007