VQAD v MIMIA
[2003] FMCA 481
•16 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VQAD v MINISTER FOR IMMIGRATION | [2003] FMCA 481 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection Visa – applicant from India – claim of fear of persecution by members of a political party. Migration Act 1958 (Cth) ss.91R; 91X; 474 Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24; [2003] HCA 2 |
| Applicant: | VQAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ729 of 2003 |
| Delivered on: | 16 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 13 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Halse |
| Solicitors for the Applicant: | Arnold Bloch Leibler |
| Counsel for the Respondent: | Ms MacDonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the respondent’s costs of and incidental to this Application in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ729 of 2003
| VQAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision by the Refugee Review Tribunal, referred to as the RRT, to affirm the decision of a delegate of the respondent not to grant to the applicant a Protection Visa. The decision which he seeks to have reviewed was handed down on 26 May 2003. The applicant is currently being held in Immigration Detention at the Maribyrnong Detention Centre. The applicant is referred to in these proceedings not by his name but by the letters VQAD pursuant to the provisions of section 91X of the Migration Act 1958. Section 91X forbids the publication of the name of any applicant for a Protection Visa.
History
The applicant is a citizen of India and a member of the Hindu religion. He was born on 8 April 1981 so he is now 22 years of age. He has been in Australia since 13 July 1999. The applicant commenced to study science at a Tertiary Institution in Una in Himachal Pradesh in India. His family were long-standing supporters of the Congress Party, which is a major political party in India. When the applicant commenced college he joined the National Student Union of India which is affiliated to the Congress Party.
The applicant was persuaded to run as a candidate in the student elections. The campaign was marked by violence including physical conflict between the supporters of the National Student Union of India and a rival group called the Akhil Bhartiya Vidyardi Parishad, also known as the ABVP. This group is affiliated with the Bhartiya of Janata Party or BJP. A fierce altercation took place during the campaign, in the course of which the applicant says that he and the president of the NSUI were attacked with chains, knives and swords. As a result of his injuries the applicant says that he was hospitalised for two weeks.
During the melee one of the applicant's friends, presumably also a member of the NSUI, pushed a student from the ABVP who fell in front of a motor car and was killed. The student elections were cancelled. Members of the ABVP held rallies and blamed the Congress Party. The applicant says that whilst he was in hospital supporters of the ABVP attacked his family home on three occasions. They threatened his parents and attempted to burn down the family's house.
When the applicant was released from hospital, the applicant says that he and the NSUI president were again attacked by armed supporters of the ABVP. The police investigated the death of the student in the melee. No charges were laid, and the student's death was regarded by the police as an accident. The applicant says that he and his parents left the area and took up residence in the state of Uttar Pradesh. Uttar Pradesh is about 600 or 700 kilometres away from the family's former home. He says that people identifying themselves as BJP supporters made threatening telephone calls to his parents, claiming that the applicant was a killer.
He applied for admission to three local Tertiary Education Institutions but did not gain a place in any one of them, despite possessing the requisite academic qualifications. He said he received no explanation for his lack of success in obtaining a place. The applicant said that the deceased person had rich friends and he did not know how the BJP supporters knew that he was in Uttar Pradesh. The applicant says that the ABVP activists mainly blamed him and the NSUI president for the death of the student. The NSUI president left the country and went to Italy.
The applicant says that his father, a retired major in the Indian Army, decided to send him to Australia for his own safety and, to quote him, “For a good future in study”. Curiously, the applicant's friend who allegedly pushed the deceased person in the path of the car does not seem to have suffered the same amount of unwanted attention as the applicant and the NSUI president. The applicant told the Refugee Review Tribunal, and I refer to page 15 of the transcript:
“That they tried to grab him too but he got clear of this because we were the main person in the fight”.
The applicant arrived in Australia on 13 July 1999. He came into Australia on a student visa which was valid for two years. He attended the first semester of his course at Royal Melbourne Institute of Technology but did not enrol for the second semester. He said that his father was not able to provide the necessary funds to pay for the fees. The applicant worked at a car wash from August 1999 until March 2001, as a waiter at an Indian restaurant from April 2001 to March 2002, and then as a security officer from March 2002 until February 2003 when he was taken into custody.
The applicant says that he was unaware that his Student Visa would be cancelled if he did not remain enrolled in his course. He was taken into custody on 26 February 2003 after he went to renew his Security Licence. In any event, his visa, which was issued for a period of two (2) years, had expired on 30 July 2001. The applicant has remained as an inmate of the Maribyrnong Immigration Detention Centre since 26 February 2003. On 19 March he applied for a Protection Visa. On 11 April this year a delegate of the respondent refused to grant the applicant a Protection Visa. The applicant then applied to the Review Tribunal for a review of this decision. This application was received on 15 April 2003.
The Refugee Review Tribunal heard the applicant's application on 20 May this year. The applicant gave oral evidence, having assured the Tribunal that his command of the English language was fine. He was accompanied by Mr Don Lucas from Victoria Legal Aid, who made a submission to the Tribunal on the applicant's behalf.
On 26 May 2003 the Refugee Review Tribunal made a decision affirming the decision of the delegate not to grant a Protection Visa to the applicant. The applicant then made application to the Federal Court for judicial review of the Refugee Review Tribunal's decision on 12 June 2003. The Federal Court transferred the proceedings to the Federal Magistrates Court on 3 July 2003.
Applicant’s contentions of fact and law
I turn now to the applicant's contentions of fact and law. The applicant, who was represented by Mr Halse of counsel on a pro bono basis, submitted a written memorandum of contentions of fact and law on 8 October 2003. In that document he stated that the central focus of his application for review would be the manner in which the Tribunal dealt with the definition of persecution in Article 1A of the Refugee Convention and section 91R of the Migration Act1958.
The applicant submitted that the Tribunal committed jurisdictional errors of the type referred to in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
The applicant contended that the Tribunal had erred in law and in fact in finding that the injuries suffered by the applicant during the melee that resulted in the student's death did not constitute persecution. The Tribunal found, at page 102 of the Court Book:
“It appears to me to have been an injury sustained in fighting in which he found himself, rather than an element of premeditated conduct directed towards people affiliated with the NSUI or the congress party”.
The Tribunal erred by importing "an element of premeditated conduct" into the considerations required by section 91R of the Act. I was referred to the Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1.
The applicant contended that the Tribunal erred in law and in fact in determining what constitutes "serious harm" under section 91R of the act or "a real chance of coming to such harm", at pages 102 and 103 of the Court Book.
Contentions
(i)First of all it is contended that the Tribunal applied a test effectively requiring the applicant to suffer further serious harm in fact in the further two months his family stayed in his family home province before fleeing to Uttar Pradesh.
(ii)Second, that the Tribunal used impermissible circular reasoning to conclude that because the applicant's assailants had two months to do serious harm to the applicant there was no chance of such harm occurring.
(iii)Third, that the Tribunal, in coming to this conclusion, had erroneously equated time with opportunity.
(iv)Fourth, it was contended that the Tribunal had erroneously disregarded the accepted fact of the serious attack with weapons and the injuries suffered by the applicant from his political opponents prior to the death of the ABV student.
(v)Fifth, it was contended that the tribunal had disregarded the accepted fact of the subsequent attack upon the applicant and the NSUI president on their return to the college.
(vi)Sixth, the Tribunal, it was alleged, had failed to have regard to the arson attack and the threats to the applicant's parents, which are referred to on page 98 of the court book.
(vii)It was further contended that the Tribunal erred by failing to deal with the applicant's claim. It was contended that the Tribunal had failed to inform itself properly of the circumstances surrounding the flight of the president of the NSUI to Italy. It had failed to inquire and properly asses the lower level of harassment of the friend directly involved in the pushing of the ABV student into the path of the car. I have of course referred to the lesser degree of harassment of the student who was alleged to be directly responsible for the push that led to the death of the unfortunate student.
(viii)It was further contended that the Tribunal erred in the consideration it gave to the applicant's very limited profile in the National Congress Party and his being involved for a very short period.
(ix)It was contended that the Tribunal erred in consideration of the test to be applied pursuant to section 91R(1)(a) of the Act, as it applies to convention reasons. It was put as far as section 474 of the Migration Act is concerned that that section does not preclude the correction of errors which would involve the failure to perform an imperative duty, which amounted to a jurisdictional error.
The applicant submitted that if the Court found that the decision of the Refugee Review Tribunal was affected by a jurisdictional error that such an error was not protected by section 474 of the Migration Act because it would not be a privative clause decision, as determined by Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 and as also set out in the decision of Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 (2003) 195 ALR 1. The applicant sought an order that the matter should be remitted to the Tribunal differently constituted to be considered and determined according to law.
When the matter came on for hearing Mr Halse for the applicant drew the Court's attention to the scar on the applicant's head, a scar he had sustained in the melee in India in 1999. I note that the applicant at the hearing before the Refugee Review Tribunal drew the Tribunal's attention to that particular scar. I also note from the transcript that the Tribunal referred to it as "that little scar".
Mr Halse went on to submit that the Tribunal overlooked the reasons for the fighting. He said that there was no other rational alternative open to the Tribunal, except that the fighting was politically motivated. He said that there was no requirement that this violence should be marked by premeditation as required by section 91R of the relevant Act. He submitted that the applicant was not an anonymous person returning to a province or to the country. He would always be identified as a candidate and that he had a real concern because he had been so identified. He could not walk back in and be anonymous.
It was submitted by the applicant that this fact was not considered by the Tribunal. The Tribunal did not pursue at any great depth what had happened to the other student, the one who had actually pushed the victim, reference is at pages 15 and 16 of the transcript. It was further submitted that the motivating factors in this case were political and it was not known who was actually doing the things that were complained of by the applicant before he left India. The applicant could not dissociate himself from the political machinations and it was an error by the tribunal to say that the motivation for violence and threats towards him was personal.
Respondent’s contentions of fact and law
I turn to the respondent's contentions. The respondent's solicitors submitted a memorandum setting out the respondent's contentions of fact and law dated 11 August 2003. They later submitted a memorandum setting out the respondent's further contentions of fact and law in reply to the applicant's contentions of 8 October 2003.
The respondent contended that no reviewable error had been shown. It was submitted that the application to the Federal Court was made after 2 October 2001, so that the decision referred to is a privative clause decision, within the meaning of section 474 of the Migration Act. It was also submitted that section 474 of the Migration Act prevents the judicial review of all decisions under the Act except those vitiated by jurisdictional error. The Court was referred again to the decision in Plaintiff S157 of 2002 v Commonwealth (supra). In this case it was submitted there is no error identified by the applicant, let alone a jurisdictional error.
Expanding on the submission that no reviewable error had been shown it was submitted that section 474 operates to prevent judicial review of the decision unless the applicant could show that the Tribunal had violated a provision of the Act which prevails over section 474. It was further contended that the Tribunal had had regard to all of the evidence before it, that the Tribunal had given an accurate and detailed summary of the applicant's case, and I was referred to pages 96 to 100 inclusive of the court book. It was also submitted that the Tribunal had considered a submission made by the applicant's legal adviser, Mr Lucas – as to the motives of persecution.
The contention was that the Tribunal had gone as far as considering the applicant's case from a perspective favourable to the applicant, even though the Tribunal had concern about the applicant's claimed political involvement it accepted that involvement. Further, the Tribunal had found that the applicant did not face a real chance of harm amounting to persecution but it went on to take a further step to consider whether, if it were wrong, the applicant would face persecution for a Convention reason.
The findings of fact made by the Tribunal were clearly open to it, it was contended. It was further contended the Tribunal had no foreign or ulterior purpose as the initiating or abiding purpose for making this decision.
In the respondent's further contentions Ms MacDonnell of counsel for the respondent made further submissions that in submitting that the tribunal had erred in fact the applicant was actually inviting the court to:
“trespass into the forbidden field of review on the merits.”
The court was referred to the decision of the Minister for Immigration and Ethnic Affair v Guo (1997) 191 CLR 559.
Ms MacDonnell opened her oral submissions to the Court on the day of the hearing on that point. She said that the Court was being invited by the applicant to review findings of fact made by the Tribunal.
Systematic and discriminatory conduct
It was submitted on behalf of the respondent that section 91R(1)(c) of the Migration Act prevents persecution for a Convention reason for satisfying the criteria for a Protection Visa unless the persecution involves systematic and discriminatory conduct. It is useful to refer to the provisions of section 91R of the Migration Act. Subsection (1) states:
For the purposes of the application of this Act and the Regulations to a particular person Article 1A(2) of the Refugee Convention, as amended by the Refugee Protocol, does not apply in relation to persecution for one or more of the reasons mentioned in the article unless:
(a)that reason is the essential and significant reason or those reasons are the essential and significant reasons for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
Subsection (2) of section 91R sets out instances of serious harm. I am not of the view that the instances of serious harm which are referred to represent an exclusive list but rather examples of the type of harm which must be considered. They are:
(a) a threat to a person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of a person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind where the denial threatens the person's capacity to subsist.
I am referred to the decision Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, where the High Court considered whether the Tribunal had made its decision on the basis that it was necessary for the applicant to show a series of incidents or a course of conduct over time, and that a single act could not amount to persecu “systematic” was used to mean “deliberate or premeditated or intended conduct of acting or carrying out actions with a premeditated intent,” but there was an error of law if it was used to mean “habitual behaviour according to a system, regular, or methodical”. Although the decision of the Full Court was overturned, none of the judgments in the High Court disapproved of the Full Court's explanation of the meaning of “systematic”.
It was brought to my attention that the decision in Ibrahim (supra) was brought about prior to the enactment of section 91R of the Migration Act, but I am of a view that insofar as the meaning of “systematic” is concerned, that the decision in Ibrahim (supra) is still law.
It was further contended that the Tribunal had correctly applied the law in considering whether the conduct towards the applicant, which it had accepted had occurred, was systematic and it was correct, it was submitted, in concluding that the injury to the applicant did not amount to persecution because it occurred in a fight and did not involve an element of premeditated conduct.
In summary, it was contended that in finding that there was no element of premeditated conduct the Tribunal made a finding of fact, which this court has no jurisdiction to review. It was that point that was reiterated to me by Ms MacDonnell of counsel at the opening of her oral submissions. Ms MacDonnell affirmed the submission which I have previously found to be a submission with which I concur, that the definition of “systematic” in Ibrahim (supra) is still applicable.
She further submitted that all of the other matters were entirely challenges to the findings of fact made by the Tribunal. She pointed out to me that the findings of fact were very clear, and that there was no need for a "What if I am wrong?" test, because the tribunal had found that the applicant had not been persecuted, and if he had, it had not been for a Convention reason, so he had not met the requirement for grant of a visa. She submitted that there was evidence to support each finding of fact.
It was further submitted that there had been no error of law which would lead the Court to review the decision which is a privative clause decision. I was referred to Plaintiff S157 (supra), and that for there to be jurisdictional error the error must be manifest. Ms MacDonnell did not say that any error of law must be a jurisdictional error, and the submissions ended as they began, with the assertion on behalf of the respondent that all the Court was really being asked to do was review a matter of fact rather than a matter of law.
I look at the Tribunal's findings and reasons which appear at page 101 of the Court Book and go through to page 104. The Tribunal accepted that the applicant had enrolled to study at the Government College in June 1998 and that his family in around September of that year moved to Uttar Pradesh where he lived until coming to Australia in July of 1999. The Tribunal also accepted the applicant did very well in his final school examinations and had hoped to pursue higher academic studies. The Tribunal accepted that the applicant's family members had been long-standing supporters of the Congress Party and the applicant's grandfather had undertaken voluntary work for that party.
The Tribunal accepted that a student with the ABVP was killed in July 1998 in the circumstances described by the applicant, which involved his being pushed into the path of a car during a melee which broke out between conflicting political groups during the campaign preceding the election for positions on the student body. The Tribunal also accepted that the incident led to the cancellation of the election and to rallies in which the student's death was said to have occurred because of political activity. The Tribunal was prepared to accept the applicant's claim that he was injured at the time and spent two weeks in hospital. The Tribunal further accepted the police investigation of the incident had led to the conclusion that it was a tragic accident.
The Tribunal went on to accept that the family of the dead student were not satisfied the police reached the correct conclusion and may have wanted to see individuals held to account for what had occurred. The Tribunal noted, as have I, that it was the applicant and the NSUI president and the applicant's family who were harassed whilst the applicant's friend, the person who had pushed the student into the path of the car, experienced surprisingly little treatment. The Tribunal went on to state that the Tribunal did not consider that the injuries sustained by the applicant in the melee constituted persecution. She said:
“It appears to me to have been an injury sustained in fighting in which he found himself, rather than an element of premeditated conduct directed towards people affiliated with the NSUI or the Congress Party.”
The Tribunal did not consider that the evidence indicated that the other things which the applicant claimed to have experienced in the period following the incident because of his proximity to and alleged involvement in the circumstances which led to the death of the student in July 1998 constituted serious harm, or that he faced a real chance of coming to such harm of a kind envisaged by section 91R. The Tribunal at page 103 of the Court Book indicated:
“I found the applicant's claims about what had happened when he was in Uttar Pradesh unconvincing and I do not accept that what he has claimed occurred for the reasons he has stated. Against the background of this finding I doubt that the applicant's family has experienced the continuing harassment and threats which the applicant has described.”
The Tribunal, at page 103, applied the "What if I am wrong?" test. This is a testis referred to in the decision in Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220. The Tribunal made an effort to apply this test at page 103, and I quote:
“If my conclusion that the applicant did not experience nor face a real chance of harm amounting to persecution because of his proximity to and alleged involvement in the episode in which the ABV student died and that he would not face such a chance if he were to return to India is wrong, the circumstances he described would still not engage Australia's protection obligations under the Refugees Convention because the essential and significant reason for what he fears is not in my view encompassed by those specified in the convention, that is, his race, religion, nationality, membership of a particular social group or a political opinion.”
The Tribunal went on to say that where multiple motivations are evident, section 91R(1)(a) of the relevant Act requires that a Convention reason or reasons must constitute at least the essential and significant motivation. The Tribunal was not satisfied that there is a real chance that the applicant would face persecution for a reason in the Refugees Convention.
Essentially, in my view the applicant is asking the Court to review findings of fact. I am not of a view that there has been shown any error of law in the Tribunal's decision and I intend to dismiss the application.
Conclusion
I am of the view that this is an appropriate subject matter for an order for costs on the view that the respondent is entitled to his costs in these proceedings. I note that there was a relatively late application for an adjournment where the applicant sought pro bono legal advice and it is pleasing to see that pro bono legal advice was provided. One matter that I do wish to draw to the attention of the profession is that there is a refreshingly high level of pro bono representation provided to applicants in Melbourne and as Ms Decle has submitted, the representation is of assistance to the court and it is certainly of assistance to applicants.
For applicants to have a right to be heard by the Court is one thing, but for them to have the assistance of competent legal practitioners to put their case properly in an attempt to provide a level playing field is something which is to be aimed at and I am of the view that members of the profession who make themselves available to do work on a pro bono basis deserve credit and the Court appreciates the high level of commitment shown by both solicitors and members of the bar. Having made those comments, as I said, I am of the view that costs should be ordered.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 30 October 2003
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