Vgaz v Minister for Immigration
[2004] FMCA 758
•5 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VGAZ & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 758 |
| MIGRATION – Review of Refugee Review Tribunal’s decision affirming a delegate’s refusal of a protection visa – disputed findings of fact – no reviewable error found. |
Migration Act 1958
Federal Magistrates Court Rules 2001
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parteApplicant S134/2002 [2003] HCA 1
Re: MIMA: Ex parte Cohen (2001) HCA 10
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
MIMIA v Eshetu (1999) 197 CLR 611
Waterford v The Commonwealth (1987) 163 CLR 54
Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297
| Applicants: | VGAZ, VHAB, VHAC, VHAD, VHAE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1061 of 2002 |
| Delivered on: | 5 November 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 4 June 2003 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001, the applicant do pay the respondent’s costs of these proceedings fixed in the sum of $4,250.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1061 of 2002
| VGAZ, VHAB, VHAC, VHAD, VHAE |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 July 2002. The Tribunal affirmed the decision of a delegate of the Minister to the effect that the applicant and his family were not entitled to the grant of protection visas. Relevantly, the Tribunal concluded that the applicant, his spouse and three children are not persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the 1967 Protocol relating to the Status of Refugees.
The relevant factual background is set out in the decision of the Tribunal as follows[1]:
The Applicant and has made written statements and submissions and gave sworn oral evidence to the Tribunal. His spouse and several witnesses also provided evidence.
The applicant was born in Tamil Nadu, India, and is an Anglo Indian and a Catholic. He has had 11 years education and was employed in Madras until 1983, when he went to the Indian State of Nagaland. He was employed at a school to instruct in physical education and act as a “proxy” teacher and he remained there until 1995.
In the meantime, his wife was also a primary teacher at the school, whom he met in 1987. They were married in 1988. His wife is a Catholic from the Meghalaya tribal region (adjacent to Nagaland). She is a member of the scheduled Khasi tribe and, as a consequence of the mixed marriage, the Applicant claims he has been verbally abused by other tribal people. He described several incidents, the worst being when he was bumped on the street and then accused of hitting the person who bumped him. That person abused him for being an outsider and then forced him to apologise in front of others he had gathered to the scene. On another occasion, he and his spouse had taken their daughter to a park for a picnic. Some males there were playing soccer and persisted in kicking the ball between them. Fearing for their young child, the Applicant asked the men to desist but was told it was their land and did not belong to an outsider. The Applicants went home, fearing that they might be physically attacked. On another occasion, the Applicant spouse overheard some men behind them planning to assault the Applicant after a movie. She feigned illness and they went home before she explained to the Applicant what she had heard in her language. They stated that they often felt threatened and would not go out after 5.00 p.m.
The Applicant explained that he is Anglo-Indian and is not, therefore, a member of any of the scheduled tribes and castes who are given first preference by the government. As a result, he will have difficulty finding a job. Both he and his spouse stated that, while they were able to previously find employment, the situation has changed over recent years and they will not be able to work because they do not have tertiary qualifications. On the other hand, Mr. Foster told the Tribunal that he can easily arrange full-time employment for the Applicant in Australia.
The Applicant and his spouse are most concerned about their daughter, Ebony. She is 15 years old and her parents fear that she could be forced into prostitution, kidnapped for sex slavery or taken as a child labourer if she returns to India. That is a prospect that is more likely because her parents will have great difficulty finding employment to support themselves and their four children (the Applicant spouse is expecting a fourth child in October) and, as the eldest, Ebony will feel compelled to make a contribution to their survival.
The witnesses were from the Applicants’ church group and had met them in Australia. They testified to the good character of the Applicants and generally reiterated their concerns about returning to India, particularly the concern for Ebony, who has assimilated into the Australian community. Father Tobin provided evidence about the anxiety Ebony’s father is experiencing about a possible return to India. The witnesses also reiterated some of the incidents in India that had been recounted by the Applicants. Pastor Charles provided some opinions about the situation in India and the difficulties of resettling into a society the Applicants left many years ago. Mr. And Mrs. Fernandez told the Tribunal that they had come from India and expressed further concerns about the difficulties encountered by members of minority groups in a country that has an increasingly nationalist government.
The Applicant and his spouse fear that they will encounter abuse because of their mixed marriage if they return to India. The principal Applicant fears that he will be denied a livelihood because he is Anglo Indian and is not given preference as a scheduled caste or tribe. His spouse fears they will be unable to work because they are unqualified.
[1] CB 143-4.
Grounds for Review
In his amended application filed 14 January 2003, the applicant stated that the grounds relied upon were those set out in an “accompanying amended affidavit”. At the hearing before me, however, Mr Fernandez (for the applicant) explained that the only grounds relied upon by the applicant were those contained in paragraphs 7, 8 and 9 of the applicant’s Contentions dated 21 March 2003. The relevant passages from those paragraphs are as follows:
7.The respondent has ignored relevant material namely the statutory declaration of the witnesses and their evidence before the Tribunal, dismissing it as “they testified to the good character of the applicants” and considered irrelevant material in a way that affected the exercise of power in that “when the application failed they appealed for ministerial intervention on humanitarian and compassionate grounds, but did not mention that they feared persecution should they return to India”. Again,”in the circumstances the Tribunal is satisfied that they only encountered minor discrimination in India and that it was not sufficiently serious to provoke them into mentioning it during their first four or five years in Australia. It finds that they were not persecuted in India.”
8.The respondent has failed to identify the specific convention claims in the context of the “mixed marriage” between the first and second applicants and their fears for their children particularly Ebony in the context of their claims. The respondent has ignored relevant material and has interpreted material in a way that affects the exercise of the respondent’s powers particularly in relation to the applicants being Christian. Further, in saying that “the circumstances in which those attacks occurred cannot be likened to the circumstances the applicant’s family will be returning to”, the respondent has failed to provide reasons for this finding.
9.The respondent has ignored relevant material in the evidence of all of the witnesses and the country information reports that were given to the Tribunal for the Tribunal to conclude, among other things, that …”if the first and second applicants encounter difficulty in finding employment … such difficulty would be the result of general economic circumstances”. Among other things, the respondent has erroneously interpreted sect. 91 of the (Migration) Act.
The Tribunal’s Reasoning
I accept the following summary of the Tribunal’s reasoning, as set out in paragraph 13 of the written submissions prepared by Mr Gilbert on behalf of the respondent:
(a)The applicant was an Anglo-Indian, a national of India, from Tamil Nadu, and a Catholic.
(b)His wife, also a national of India, was a member of the Khasi tribe, and a Catholic.
(c)The applicant and his wife had been the subject of verbal abuse by reason of their mixed marriage, including menacing approaches and threats, resulting in humiliation to them.
(d)They felt insecure, but had not been subjected to persecution, rather, they had suffered minor discrimination.
(e)They had not faced persecution by reason of their caste.
(f)Ebony would not be at risk of abduction and being sold into slavery, or of sexual assault.
(g)They did not have a well-founded fear of persecution when they left India.
(h)Any difficulty in finding employment on return would be as a result of the general economic circumstances, rather than the applicant’s ethnic background and/or mixed marriage.
(i)The combined effect of the applicant’s Anglo-Indian status, Christian religion, and marriage to a person from a scheduled tribe may result in discrimination, but this was not sufficient for the purposes of s.91R of the Act.
(j)Neither the applicant’s wife nor his children would face a real chance of persecution should they return to India.
The Law
Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a “privative clause decision” that is a decision made on a review by the Tribunal. “Privative clause decision” is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a) is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
a)the decision is a bona fide attempt by the decision-maker to exercise its power;
b)the decision relates to the subject matter of the legislation; and
c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression ‘decision[s]… made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[2] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[2] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J.
If there is no jurisdictional error affecting the Tribunal’s decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[3] ¾ but there is no need to consider such issues in the proceedings before the Court.
[3] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act.
First “Broad” Ground – Ignoring Relevant Material
The Tribunal’s “Discussion and Findings” in relation to this issue appear at page 147 of the Court Book and are as follows:
The Tribunal accepts that the Applicant and his wife have been the target of some verbal abuse as a consequence of their mixed marriage. It accepts that some men have made menacing approaches or uttered menacing threats and that, on one occasion, the Applicant was humiliated. It is plausible that the family did not wish to go out after 5.00 p.m. because they felt insecure. Despite their fears, none of the family members actually encountered any persecution.
On the other hand, the Tribunal notes that both Nagaland and Maghalaya have predominantly Christian populations (see section one “Religious Demography” of the US Department of State International Religious Freedom Report 2001: India (Released by the Bureau of Democracy, Human Rights, and Labor, October 2001); that the Applicants chose to continue living in the area where they say that they were abused; and the Applicant remained in the same job for seven years after he was married. His spouse has also been employed in a position commensurate with her qualifications and experience. After they arrived in Australia they chose to seek permanent residence on the basis of a family connection rather than for refugee reasons. When that application failed they appealed for Ministerial intervention on humanitarian and compassionate grounds but did not mention that they feared persecution should they return to India.
In the circumstances, the Tribunal is satisfied that they only encountered minor discrimination in India and that it was not sufficiently serious to provoke them into mentioning it during their first four or five years in Australia. It finds that they were not persecuted in India.
In support of his argument in relation to this ground, Mr Fernandez referred to passages from the evidence of Father Tobin, who is the applicant’s Parish Priest. The particular passages are on pages 27 and 28 of the transcript:
FATHER TOBIN: I have been involved with (the Applicant) now for a number of years … I even went to Canberra in February 2001. I had an interview with the Minister, Mr Ruddock, but at that time I was approaching it more from the case of family reunion. The reason, sir, but I know we are not interested in this particular time, but the fear that he had that they had of persecution when they went back and prejudice that was also being told to me, you know, years ago. So if you like I will just talk on those matters.
TRIBUNAL: Was that something you passed on to the Minister about?
FATHER TOBIN: No, that was just something that I gave to Mr Ruddock. …
FATHER TOBIN: But the thrust of my appeal there was on grounds of family reunion. … he has told me many times about threats and verbal threats and he has suffered when he married (his wife) and they lived in that part of India. …
FATHER TOBIN: … In fact I had a long conversation with an official in Ruddock’s office who rang me and I could have pursued the refugee status but I was dissuaded from that by this gentleman on the phone from Canberra and when I spoke about this he said, “I have lived in India for many years” and he said that India is not considered to be a refugee — hasn’t got refugee status, so I didn’t go into that because he sort of dismissed the real danger to their safety. So that is why when I went to see Mr Ruddock I was emphasising family reunion which I thought they had a stronger case, but I was dissuaded from that, as I say, by the attitude of this official from Ruddock’s office.
Father Tobin provided two letters in support of the applicant’s case —the first on 28 July 2000 (CB 52) and the second on 16 February 2001 (CB 66). The contents of those letters (and a subsequent statutory declaration made by Father Tobin on 12 June 2002[4]) have been adequately dealt with in the Tribunal’s Reasons.
[4] CB 75-6
In my opinion, Mr Fernandez’s submission in relation to this ground is without merit. I am unable to identify any relevant evidence that has been ignored by the Tribunal. Further, and as Mr Gilbert submitted, the fact of the matter is that the Tribunal accepted the general tenor of the applicant’s evidence, and the finding that the applicant and his wife “only encountered minor discrimination in India” is unexceptionable. Whether or not such discrimination was “sufficiently serious to provoke them into mentioning it during their first four or five years in Australia” is of no relevance to the Tribunal’s decision. It is of no relevance because the Tribunal accepted the applicant’s version of what had actually occurred in India.
Similarly, the Tribunal’s conclusion that the “minor discrimination” encountered by the applicant and his spouse in India did not amount to persecution (within the relevant legislative framework) is also unexceptionable.
The problem faced by the applicant in persuading the Tribunal that the discrimination that he and his wife faced was other than "minor” is highlighted in the following passage from the transcript (see page 11):
TRIBUNAL: What was the worst thing that ever happened to you, do you think? The time the man bumped you and forced you to apologise?
APPLICANT: Yes. And there were many, as I said, there were many occasions which it was threatening, they physically threatened but somehow or other I just avoided it and one of those cases where I just had to apologise for things which I didn’t do.
TRIBUNAL: Yes, so that is the worst thing that happened, when you got bumped and you were accused of being an outsider who didn’t push somebody?
APPLICANT: Yes. …
In my view, the effect of Mr Fernandez’s submissions in relation to this ground was to invite the Court to involve itself in impermissible merits review.
Second and Third (Broad) Grounds — Failure to Provide Reasons and Erroneous Interpretation of Section 91 of the Migration Act
I had considerable difficulty understanding Mr Fernandez’s submissions in relation to these two grounds (which were effectively combined in argument ).
Mr Fernandez referred to the following passages from the Tribunal’s Reasons:
The Tribunal understands their concerns for their daughter. It understands that those concerns are exacerbated because their daughter has established her place within the Australian community and is unaccustomed to Indian society. Ebony did not present as the type of child who might feel obliged to resort to a lifestyle that she detests in order to support her parents. The Applicant has relied heavily on the US Department of State Country Reports on Human Rights Practices for 2001 to support his claims that he and family members face persecution. That publication does not observe various human rights abuses in India, including attacks on minority religious groups and attacks on young girls. However, the circumstances in which those attacks occurred cannot be likened to the circumstances the Applicant’s family would be returning to and the available information does not support a conclusion that Ebony is at real risk of being abducted and sold into slavery or subjected to sexual assaults, or otherwise persecuted. The Tribunal finds accordingly.[5]
In regard to the Applicant being Anglo Indian it is plausible that those belonging to higher Hindu castes look down on them. The Applicant has been unable to produce evidence of persecution of Anglo Indians, notwithstanding he has encountered some ignorant and anxiety-producing behaviour. He is well-educated and gainfully employed. The Tribunal recognizes that Anglo Indians no longer hold the positions of power and favour that they formerly held and it finds that the Applicant might encounter occasional discrimination because of his Anglo Indian heritage and his Christian religion and his marriage to a member of a scheduled tribe. However, it concludes that he can pursue his chosen lifestyle with minimal interference and it is not satisfied that such discrimination as he might meet will amount to persecution for the purposes of section 91 of the Act, even when considered in combination with the sporadic discrimination he might encounter as a Christian. Likewise, it finds that his wife and children can also pursue a lifestyle of their choice without a real chance of encountering persecution for Convention reasons.[6]
[5] CB 148
[6] CB 151
Mr Fernandez referred to a number of transcript references in support of his submissions — relevantly, transcript pages 24, 30, 31, 33, 35, 41 and 43. He also referred to page 12 of the transcript, and page 5 of the Court Book.
In my opinion, there is no merit in either of these grounds. As Mr Gilbert submitted —
… the Tribunal was clearly aware of how the applicant was putting his claim. It addressed specifically the consequence of the mixed marriage and dealt specifically with the applicant’s concerns regarding his daughter, Ebony. The findings on these matters involved matters of fact within the domain of the Tribunal. The applicant here impermissably seeks to re-agitate the merits of his case.
While the making of findings and the drawing of inferences in the absence of evidence is an error of law[7], it is not possible to challenge an administrative decision on the ground that the findings made by the decision maker were “not open on the evidence”. The grounds on which this Court can review the Tribunal’s findings of fact are limited. It is not in itself an error of law for the Tribunal to make an incorrect finding of fact, at least where there is some material before the Tribunal to support the finding[8].
[7] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357 per Mason CJ; MIMIA v Eshetu (1999) 197 CLR 611 at 654 (paragraph [138]) per Gummow J.
[8] See Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78; Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303.
As McHugh J said in Re: MIMA: Ex parte Cohen (2001) HCA 10 at [37]:
If an Administrative Tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an Administrative Tribunal to determine, and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process to find it is usually a slender ground for concluding that a Tribunal misconceived its duty.
Conclusion
In my opinion it is apparent from an examination of the Tribunal’s decision that it gave careful consideration to the applicant’s assertions and concerns. Indeed, it is apparent from the final paragraph of the Tribunal’s Reasons that it had considerably sympathy for the applicant and his family, and recognised the difficulties which they faced:
The Tribunal notes that the Applicant family has spent a long period in Australia and has followed professional advice in seeking to remain in this country. They have been frank in giving evidence and have expressed legitimate reasons for their desire to stay in Australia. While they are not, in the Tribunal’s view, refugees, it is understandable that they would follow advice in seeking Australia’s protection. They have a strong social and familial network here and their children have been welcomed into, and become accustomed to, Australian society. The family members also contribute greatly to the Christian congregation to which they belong, as was apparent in evidence given by their witnesses. However, those are issues which raise compassionate matters but do not alter the Tribunal’s conclusion that the Applicants do not engage Australia’s protection obligations.[9]
[9] CB 152
I have reread the Tribunal’s decision carefully. I am unable to identify any basis upon which the Tribunal’s decision can be interfered with. It acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any constitutional limits were exceeded.
Further, there is no apparent breach of procedural fairness which could amount to jurisdictional error.
In my opinion, the Tribunal conducted an objective inquiry into the question of whether the condition precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptionable.
In my view, the findings of fact contained in the Tribunal’s decision, and the conclusions drawn from those facts, were reasonably open to it.
For the preceding reasons, these grounds for review must fail, and the application must be dismissed with costs (which I shall fix in the sum of $4,250.00).
I, Barbara Mendleson, certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate:
Date: 3 November 2004
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