VWRT v Minister for Immigration
[2005] FMCA 1816
•7 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWRT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1816 |
| MIGRATION – Protection visa – whether jurisdictional error – whether failure to make finding relating to social group – failure to consider an essential integer of claim – decision set aside. |
| Migration Act 1958, s.91R |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 184 |
| Applicant: | VWRT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 150 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2005 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr P.K. Over |
| Counsel for the First and Second Respondents: | Mr S. Hay |
| Solicitors for the First and Second Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 30 August 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 150 of 2005
| VWRT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant in this application seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 August 2004. The Tribunal had affirmed a decision of a delegate of the First Respondent to refuse to grant a protection visa. The Applicant has relied upon an Amended Application filed 17 May 2005.
The Applicant had arrived in Australia on 9 January 2002 on an Indian passport with a business visa. On 6 April 2004 he applied for a protection visa. On 21 April 2004 a delegate of the First Respondent refused to grant the visa. On 30 April 2004 the Applicant applied to the Tribunal for review of the delegate's decision. On 29 June 2004 the Applicant through his migration agent submitted a statutory declaration by the Applicant in support of his application (Court Book pp. 80-85).
On 30 August 2004 the Tribunal affirmed the First Respondent's delegate's decision and found that it was not satisfied that the Applicant was a person to whom Australia owed protection obligations. The background to the Applicant's claim is set out in the protection visa application, the application for review and statutory declaration. The Applicant also gave oral evidence at the hearing before the Tribunal conducted on 11 August 2004. The transcript of that hearing formed part of the material before this Court by way of a Supplementary Court Book.
The claims of the Applicant have been accurately set out in the helpful contentions of fact and law filed by Pro Bono Counsel for the Applicant and consist of the following:
(a)the applicant is an Indian citizen and a Muslim;
(b)he lived in a village where Muslims were a minority;
(c)in 1991, his family's shop had been burnt down because of his brother's involvement in Madjlis, a Muslim nationalist party;
(d)his brother was killed in Hindu-Muslim riots in October 1993;
(e)he fell in love with a Hindu woman in 1999. They met away from each others home and spoke by telephone because he is Muslim and she is Hindu. The woman is from a rich and political family;
(f)the applicant and the woman decided to marry and elope;
(g)the woman's brother found out about the relationship. The brother is “a paid supporter of the Hindu Nationalist BJP - one of the major political parties in India"; he is a “very violent person and a Hindu extremist"; he harasses Muslim families; he is a criminal;
(h)the woman's brother and his friends assaulted the applicant causing a hairline fracture to his upper left arm, and the woman's brother, while holding a knife, threatened to kill the applicant if he ever saw the woman again;
(i)the woman urged the applicant to leave with a view that she would join him subsequently. They agreed to marry;
(j)the applicant came to Australia.
(k)the applicant fears that the woman's family, particularly, the woman's brother will punish him if he returns to India;
(l)the woman's family sought to have her marry a Hindu but she refused;
(m)he has spoken to the woman up until February 2004 when she disappeared and has either run away from home or her family has harmed her. He fears that her family blame him and will seek retribution;
(n)he claims that the authorities in India will not protect him because they are biased against Muslims in the Hindu-Muslim dispute.
The Amended Application
As indicated earlier, the Applicant relies upon an Amended Application filed 17 May 2005. However, the issues distilled from that Amended Application, quite properly in the Applicant's Contentions of Fact and Law, refer to the claims in the following terms:
2.The Refugee Review Tribunal affirmed the decision of the delegate of the respondent to reject the application for a protection visa stating that while it accepted that the applicant feared the woman's brother the fear was not for a Convention reason. In doing so, its reasons make no mention that the woman's brother was a Hindu nationalist. Was this a failure by the Tribunal to consider an essential integer of the applicant's claim and, therefore, a jurisdictional error?
3.The applicant claimed to be a member of a particular social group, namely, a Muslim who had formed a relationship with a person of another religion. Yet the Tribunal described the applicant's adviser having submitted that the applicant was a member of a different particular social group, people involved in inter-caste relationships whom are seen as a threat to such a caste system. Was this a jurisdictional error?
I am satisfied that those two issues accurately and relevantly identify the matters for consideration by this Court upon the application for judicial review. I am satisfied that if the errors had occurred as alleged then they would be sufficient to constitute jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The Tribunal decision
There does not seem to be any significant dispute between the parties concerning the summary of the Tribunal decision which appears in the Contentions of the Respondent in the following terms:
“4.Before the Tribunal, the applicant claimed that he faced a real chance of persecution by the family of his Hindu girlfriend if he were to return to India because her family disapproved of their relationship [CB 54]. In particular, the applicant claimed that he was at risk of persecution:
(a)because he was a member of a particular social group comprising of people in an inter-caste relation [CB 115.3];
(b)as a result of his Muslim religion or ethnicity; and
(c)because of a political opinion imputed to him as a result of the political activities of his brother.
5.The Tribunal did not accept that the applicant had a well founded fear of persecution [CB 125.6]. The Tribunal relevantly made the following findings:
(a)whilst the Tribunal accepted that the applicant’s brother may have been murdered, it did not accept or find compelling evidence to indicate that:
(i) the murder took place during riots or because the brother was a member of a political party [CB120.2]; or
(ii) his brother’s political views would impinge on the way the applicant would be treated in the reasonably foreseeable future [CB120.3];
(b)any animosity arising as a result of the family’s Muslim religion or the brother’s political activities would have manifested in the time between the brother’s death and the time the applicant started dating his girlfriend and yet this did not occur [CB120.3];
(c)the applicant did not face a real chance of persecution for reasons of religion or imputed political opinion should he return to India [CB120.6];
(d)in light of the applicant’s claim to fear persecution because of his relationship with a Hindu woman, the Tribunal noted that the details of the claim provided by the applicant were not consistent[CB120.9];
(e)the applicant’s fear arising from the relationship was due to the fear of harm from a non-State agent, and the applicant produced no evidence that the State could not or would not protect him from such harm [CB121.1];
(f)no evidence was produced to indicate that the applicant attempted to report the threat to his life by his girlfriend’s brother and as such the Tribunal found that the Indian government could provide and would not withhold protection from the applicant if he were to return to India [CB 121.9 – 122.1];
(g)the Tribunal was not satisfied by the applicant’s claim that he was a member of a particular social group, that of a group comprising of people in inter-caste relationship, because of its examination of information about the caste system generally and because it found that the caste system was peculiar to the Hindu religion – as the applicant was Muslim, he could not be considered to have been in an inter-caste relationship [CB124.9]; and
(h)the Tribunal noted that the applicant claimed that he would be persecuted by reason of his ethnicity, but as he had not provided any evidence to establish what his ethnicity was, the Tribunal could not be satisfied that his ethnicity established any Convention nexus with the harm feared [CB125.2].”
Perhaps in addition to those references to the Tribunal decision one should add that the Tribunal accepted, as indicated by the Applicant's Counsel, that:
“the applicant has terrible memories of the clashes in the 1990s when his family's business was burnt down
his brother may have been murdered but it does not have compelling evidence to indicate that it was during the Muslim riots or because he had been a member of a political party as claimed.”
It is otherwise clear that the Tribunal certainly noted tensions between Hindus and Muslims in India, though ultimately states, having considered the claim about the Applicant's brother and that his family's business had been burnt down, that the Applicant does not face a real chance of persecution for reason of his religion or imputed political opinion should he return to India.
Submissions and findings
The Applicant submitted that in this instance there would be jurisdictional error in circumstances where an issue was raised on the evidence or contentions advanced by the Applicant or both and that issue if resolved one way would be relevant to the Tribunal's review of the delegate's decision and where there has been a failure to deal with it in the published reasons, raising a strong inference that it has been overlooked (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 184 at [46-7]).
During the course of submissions, Counsel for the Applicant referred the Court to the following extract from the decision of the Full Federal Court in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 80 where the Court states the following at paragraph [29]:
“29 However these matters may be, even on the narrow view of the effect of S157 proposed by counsel for the appellant, it cannot be other than an important matter, going to the core of the Tribunal's jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, to an integer of the claim. In that case, Allsop J, with whom Spender J agreed, said that "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on". His Honour then made clear that this includes a failure to examine all the integers of any claim, saying "The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration and Multicultural Affairs v Peko-Wallsend (1986) 162 CLR 24 ... and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323" (emphasis added). Merkel J agreed with Allsop J in the result and was not at odds with Allsop J's approach. Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 78-81 [31]-[38].”
It was submitted that in this case the Tribunal, having accepted that the Applicant had a real fear of harm because of persecution from the woman's brother, had to make a finding as to the essential and significant reasons for the persecution. It was submitted that in doing so it was imperative that the Tribunal identify from the applicant's claim the characteristics of the brother that were alleged to be integral to the act of persecution.
The applicant had claimed and I accept that he claimed that the brother was “a paid supporter of the Hindu Nationalist BJP - one of the major political parties in India.”
Further I accept he had claimed that the brother was “a very violent person and a Hindu extremist.”
It was submitted by the Applicant that the Tribunal then simply referred to the brother as a criminal without reference to his Hindu nationalism. Having done that, it was argued that the persecution by the woman's brother of the Applicant was characterised inevitably as an inter‑family dispute: a criminal but protective brother stopping his sister's planned elopement.
The approach, it was submitted, failed to consider an essential integer of the claim namely that the Applicant is a Muslim and that the brother was a Hindu nationalist and that it was claimed that the persecution was for religious reasons. This failure, it was claimed, was jurisdictional error.
A failure by the Tribunal to appreciate that the Applicant was claiming that his persecution by the woman's brother was for religion is evident, it was argued, in the structure of the reasons for the Tribunal. In its findings the Tribunal considered the burning down of the family's business and the death of the Applicant's brother, and then before considering the claim about the persecution by the woman's brother, concludes that the Applicant does not have a real chance of persecution for reasons of his religion should he return to India.
That failure, it is claimed, is also evident in the Tribunal's consideration of whether the Applicant would be protected by Indian authorities should he return home. It was agued that despite the Applicant having claimed that the authorities in India would not protect him because they are biased against Muslims in the Hindu-Muslim dispute and that the family had influence and could bribe the Indian police, the Tribunal simply characterised his claim as that the family has power and the police are prone to corruption. It was argued that this belied the claim to the religious aspect of the persecution.
The Respondent referred to the Tribunal's findings and submitted that in this instance emphasis was placed in support of the Applicant's claim upon the statutory declaration. It was argued that during the hearing before the Tribunal, exchanges occurred between the Applicant and the Tribunal which referred to the Applicant's girlfriend's brother being “a very well known underground figure and he is involved in drugs, he is involved in murders, and I am scared of him.”
It was noted that the Tribunal in reaching its decision referred to the brother and the Applicant's fear of him in these terms:
“He particularly fears the wrath of the girl's brother, who is apparently a convicted criminal who threatened him”.
The Tribunal in its decision goes on to state the following:
“The actual details provided of the relationship of the applicant with the Hindu girl have not been consistent and the Tribunal finds it rather perplexing to be given different dates for the time they first began their relationship and of the time when she apparently disappeared (since the applicant has been in Australia) when the central issue is their relationship. Even disregarding these discrepancies, the Tribunal finds that the applicant is fearing harm from a non-state agent, that being the girl's brother.
Persecution by private individuals or groups does not bring a person within the convention unless the state either encourages or is or appears to be powerless to prevent the private persecution”.
The Tribunal then refers to the High Court decision in Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 (24 February 1997) and otherwise refers to s.91R of the Migration Act 1958. It goes on to state:
“In the present case the Tribunal finds that the essential and significant reason the applicant was pursued by his girlfriend's brother is because the brother discovered their plans to secretly elope and marry. The Tribunal therefore finds that the applicant does not fear harm for a Convention reason”.
After referring to those extracts from the Tribunal decision, the First Respondent's Counsel submitted that on a fair reading of the transcript of the hearing the Applicant's fear of his girlfriend's brother stemmed from the brother's violent criminality rather than any claimed violent religious persuasion. It was argued the Tribunal squarely dealt with this claim.
In the alternative, it was argued that despite the claimed personal characteristics of the girlfriend's brother, the Tribunal found as a matter of fact that the harm feared was "essentially and significantly" motivated by a non-convention reason; namely the alleged proposed marriage of his Applicant and his girlfriend. This finding, it was argued, was open and available on the evidence and could not be affected by the brother's characteristics when read in the light of the Tribunal's findings about the availability of state protection and represents a complete answer to the Applicant's claim for protection on this ground.
In my view, on a proper reading of the transcript and material before the Tribunal, it has failed as submitted by the Applicant to properly consider what I find to be an integer of this claim; namely the brother's political affiliation with the Hindu national BJP. It is that association with the political party, combined with the background finding of the applicant being Muslim in a minority Muslim community otherwise dominated by a Hindu population, that constitutes a sufficient failure to consider that integer of the claim which would provide a basis upon which this court could conclude there has been jurisdictional error.
Although the Tribunal has ultimately made findings which appear to confine the fear of the brother to his criminality, it is clear from the material before the Tribunal that it was not simply the criminality which was relied upon by the Applicant but rather the criminality combined with the political association of the brother.
The Tribunal in my view has failed to properly consider that factor, and it is not sufficient for the Tribunal to be relieved of its obligation to consider that integer of the claim by simply making a narrow finding which may be more properly consistent with the exchange in the transcript rather than having regard to the totality of the information before it, including the original claim form and statutory declaration in support of the claim. Hence in my view, on that ground the application should succeed.
It is further argued for and on behalf of the Applicant that in this instance, in determining whether the Applicant was persecuted by reason of his membership of a particular social group, the Tribunal should have identified the particular social group. It was argued that the Applicant via his migration agent submitted at the Tribunal that he was reluctant to specify the particular social group too precisely; that he was an Indian Muslim involved in an inter-ethnic or inter‑religious relationship and as such belonged to a particular social group.
It is relevant to note that the transcript of the proceedings before the Tribunal in my view undoubtedly gives rise to a significant degree of confusion in the mind of the Tribunal, which to a large extent was raised by the way in which the claimed membership of a particular social group was referred to by the applicant's then representative. Relevantly, the transcript provides the following exchange:
APPLICANT'S REPRESENTATIVE: Finally, just on the subject of social group, we'd submit that because (the applicant) has formed a relationship with a woman of an opposite ethnicity, religion, that he has become a member of a particular social group that could be subject to persecution in India. I don't want to exhaustively define that social group, but one example might be a person who is involved in an inter-ethnic, inter-religious relationship, being Muslim in that relationship, and we'd submit that that also presents a significant threat to his wellbeing. That's all I have to say.
THE TRIBUNAL: I've got one question. I'm a bit perplexed about the ethnicity issue that you've brought up. I don't quite follow. If we're talking about religion I understand that quite clearly, but where does ethnicity come in? I mean, in the form (the applicant) has put himself down as belonging to the Sunni ethnic group, which is not really an ethnic group. It's a portion of the Muslim faith. So I don't follow that argument in terms of ethnicity. Which ethnic group do you feel you belong to (applicant)?
INTERPRETER: Sunni.
THE TRIBUNAL: Sunni, well, in my mind that's not an ethnic group. It's a religious division within a larger faith.
It is clear from the transcript that the Tribunal quite fairly then raised concerns about the reference to ethnic group. Ultimately the Applicant was invited to elucidate that issue within seven days and was given the opportunity to do so in writing. For reasons which remain unclear, the opportunity was not taken up by the Applicant or his representative. It is hardly surprising in those circumstances that the Tribunal then reached conclusions which are now the subject of some criticism.
Nevertheless, the Applicant submits that in the circumstances there was evidence before the Tribunal that the Applicant belonged to a particular social group; namely an Indian Muslim involved in an inter-religious relationship, and as such belonged to a particular social group. In considering the issue of particular social group, it was further submitted that while the Applicant had not specified exactly the particular social group, the Tribunal itself then completely mis-stated the nature of the particular social group to which he claimed to belong. Instead of stating that the Applicant via his migration agent had claimed to be a member of a distinct, particular social group the Tribunal stated that the Applicant through his migration agent had claimed to be a member of a distinctive, particular social group; namely people involved in “inter-caste relationships who are seen as a threat to such a caste system.”
It is perhaps useful at this point to set out precisely the relevant passage from the Tribunal's decision where it states:
“The applicant's adviser submitted that the applicant would be persecuted for belonging to a particular social group (PSG) consisting of persons involved in inter-caste relationships who are seen as a threat to such a caste system.”
The Applicant submitted that having constructed this as a relevant social group, the Tribunal then not surprisingly noted the caste system was a social structure peculiar to Hindus and that the Applicant was a Muslim and not of any caste. That mis-statement of the particular social group was submitted to be a jurisdictional error.
In dealing with the issue of the particular social group claim, the First Respondent referred to the findings of the Tribunal and the transcript extract set out earlier in this judgment. It was submitted that in these proceedings, as before the Tribunal, the Applicant has again failed to specify the particular social group which he claims to be a member of, and thus it is impossible to know if such a group possesses the necessary characteristics to bring it within the terms of the Convention as it has been applied and construed in Australia.
It was further submitted by the First Respondent that to the extent that the particular social group claimed relied upon the applicant's ethnicity, it was submitted that that claim was not put to the Tribunal, the invitation being extended to elucidate and it was not taken up. It was argued that the Tribunal is bound to respond to the case put to it by the applicant (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]).
It was submitted that to the extent that a particular social group was put, it was dealt with. No other particular social group claimed was directly put nor arose on the material by implication, and accordingly no error has been committed by the Tribunal according to the First Respondent's submission.
In my view there is clearly confusion in the manner in which the particular social group was raised by the Applicant's representative before the Tribunal. The introduction of the concept of "ethnicity" was clearly both inaccurate and irrelevant. A proper reading of the transcript reveals in my view that once that term "ethnicity" was introduced, the Tribunal then not surprisingly explored that issue and drew the conclusion which it was almost bound to conclude that this was not an issue of ethnicity.
Indeed the phrase that a relationship had been formed with a woman "of an opposite ethnicity, religion" is itself a sufficient indicator that the language used by the representative was imprecise. It is difficult to conceive of a person having an "opposite ethnicity".
However, a proper reading of the claim, statutory declaration, and the example given of the particular social group before the tribunal in my view fairly raises and in the alternative, by inference raises sufficient identification of a particular social group to be characterised as a person involved in an inter-religious relationship, being a Muslim involved in a relationship with a Hindu.
That particular social group is clearly capable of identification sufficient in my view to justify the Tribunal exploring that group rather than discounting or being dismissive of an alternative suggestion regarding ethnicity. It clearly is not a case where it could be suggested in any manner that this claim was based on what might otherwise be described as persons being involved in inter-caste relationships who are seen as a threat to such a caste system as characterised by the Tribunal.
In my view the failure of the Tribunal to address the particular social group which has been raised squarely in the material and/or in the alternative at least arises by implication from the material is sufficient to constitute jurisdictional error. Accordingly, on this ground it is my conclusion that the application should succeed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 December 2005
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