VWSW v Minister for Immigration
[2006] FMCA 166
•13 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWSW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 166 |
| MIGRATION – Refugee Review Tribunal – persecution – meaning of persecution – whether relevant circumstances taken into account. MIGRATION – Refugee Review Tribunal – whether claim determined – integer of claim – allegations raised at the hearing for first time – allegations not in application or supporting statement. MIGRATION – Refugee Review Tribunal – meaning of ‘fear’ – bipartite approach – relevance of return to country of origin – relevant factor in determining test for fear – question of fact for Tribunal. |
| Migration Act 1958, s.91r |
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184 MZWWP v Minister for Immigration & Anor [2006] FMCA 105 |
| Applicant: | VWSW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG1635 of 2004 |
| Judgment of: | Reithmuller FM |
| Hearing date: | 16 November 2005 |
| Date of Last Submission: | 16 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | TA Fernandez |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as a respondent to the application.
The application filed on 9 November 2004 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1635 of 2004
| VWSW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of the former Yugoslav Republic of Macedonia (the FYROM). He came to Australia on
16 March 1997 on a short stay visitor visa. On 30 September 2003 the applicant lodged an application for a protection visa which was refused on 6 November 20003.
On 4 December 2003 the applicant sought review with the Refugee Review Tribunal, which heard and determined his application on
15 October 2004 affirming the delegate's decision not to grant a protection visa. On 9 November 2004 the applicant applied for judicial review of the decision.
Before the tribunal the applicant claimed persecution at the hands of nationalist Montenegrians on the basis that he was a Muslim Roma (a gypsy). The applicant said that he was particularly disliked because he was a Roma with social status, having married a highly educated Montenegrian. He was fearful of persecution by the internal Macedonian revolutionary organisation (the VMRO) and said the police were unwilling to assist him. In making its findings the tribunal made a large number of findings against the applicant, including (as set out by the respondent in submissions) the following:
a)The tribunal was not satisfied that the applicant’s claims of being refused service and being unable to find work constituted harm of the type and severity such as would constitute persecution [14];
b)In light of the applicant’s ability to operate his own business from 1989 to 1997, the tribunal found the applicant’s claims that Roma had no rights in Macedonia were not supported [14];
c)In view of the applicant’s failure to provide any actual examples of racial vilification, the tribunal did not accept that the applicant’s claims constituted serious harm amounting to persecution [14];
d)The tribunal did not accept that the pressure apparently put on the applicant to join the VRMO could be construed as persecution and did not accept that this pressure would escalate if the applicant were to return to the FYROM [14-15];
e)In view of the applicant’s decision to return to Macedonia for one month, just six months after he arrived in Australia, the tribunal did not accept that he had any fear of persecution [15];
f)The tribunal did not accept that there was a real chance that the applicant would be persecuted for reason of his ethnicity or religion now or in the foreseeable future if he were to be returned to Macedonia [15];
The grounds of the application were difficult to clarify. The application itself (in its amended form) set out the following ground:
1. The respondent has erred jurisdictionally in that:
(a) There does not appear to be any indication that the applicant was not pursuing his ethnic and religious convention related claims against Serbia and Montenegro. Therefore, the Tribunal failure to consider this aspect of the applicant’s claims, which has quite explicitly set out, is a jurisdictional error.
(b) The illustrated incidents of the fear of persecution because of the applicant’s ethnicity and religion which the tribunal classified as being merely complaints in the most general terms is a failure to grasp the deeper significance of the applicant’s claims and consequently a failure to consider those claims particularly in the light of country information that was not only before the Tribunal but in particular before the delegate. This is an incorrect interpretation of the convention as qualified by the Migration Act.
(c) The tribunal has failed to grasp the significance of the applicant’s claim in relation to VMRQ and consequently failed to consider those claims from a convention perspective dismissing them as being non-persecution oriented.
(d) The tribunal has taken the fact of the applicant’s return to Macedonia out of context and failed to consider the manner in which his spouse application was considered as there being no indication of persecution. A failure to consider the evidence as a whole.
(e) The finding that the applicant never claimed that he left Macedonia for fear of persecution is to ignore and therefore not consider the applicant’s evidence (see in particular page 10 of the transcript).
This was supported by an outline of argument in the following terms:
5.The issue here is did the Tribunal consider these claims under the statutory framework of its powers or no:
a) Firstly the Tribunal has failed to consider the deeper significance of the applicant’s claims resulting in they not being considered at all.
b) Secondly, the applicant’s illustrative claims of being refused service and experiencing racial vilification and inability to find work, in itself Convention related claims, are being dismissed by the Tribunal as non persecutory in nature. This is an error itself given that the Tribunal accepted that the applicant was a Roma. The more fundamental error was to look at the illustrative incidents as the very claims of the applicant. The Tribunal therefore did not consider these illustrative incidents in the broader and deeper significance of the applicant being Roma. Therefore, a failure to apply the convention to the applicant’s ethnic and deep-rooted and entrenched claims as they were in the former Yugoslavia and in the context of a correct interpretation of section 91R of the Act. Likewise, the tribunal has erred by considering the applicant’s claims in relation to VMRO from a non-convention perspective.
c) Thirdly the Tribunal found that even if the applicant had a subjective fear of persecution he would not have returned to Macedonia. The tribunal has failed to consider his return in its proper context and in the context in which they were made in relation to his spouse application (see pages 10, 15 16 of the transcript).
d) Fourthly, another aspect of the applicant’s convention related claims in relation to Serbia and Montenegro where he had lived for some time and where his children now apparently live. The Tribunal says that he was apparently not pursuing these claims yet, there does appear to be any indication that this was so resulting in the Tribunal’s failure to consider these aspects of the applicant’s claims
e)Fifthly, the outline of country information that the Tribunal refers to is rife with the discrimination and persecution suffered by the Roma people, a fact that is also very much in the public domain. By failing to consider the applicant’s claims in the context of the applicant being a Roma and a Muslim, the Tribunal has failed in its task to discharge its statutory function and by saying that “on the contrary efforts are being made to remove these elements of discrimination which persists” the Tribunal has failed to correctly interpret country information that it relied upon. A sweeping generalized statement is an indication of a flawed opinion manifestly unreasonable both in respect of the current state of affairs and a speculation into the future.
f)Sixthly, the Tribunal has not considered the applicant’s claims of being a Muslim at all.
The written submissions in the matter were largely unhelpful, focussing mostly upon disputes as to findings of fact. Grounds 1(c) and Outline 5(a) appear to be disputes of fact finding. The process of judicial review does not encompass a review on the merits or a re-hearing of the application. To the extent that the applicant seeks a merits review, the application should be dismissed.
The circumstances of the Grounds specifically raised by the applicant, and the further issues set out in the Outline appear to be:
(1)Whether the tribunal properly interpreted s.91r (Ground 1(b) and Outline 5(b) and (e);
(2)Whether the tribunal properly considered the applicant's claims with respect to Serbia and Montenegro and being a Muslim (Ground 1(a) and Outline 5(d) and (f)); and
(3)Whether the tribunal failed to have regard to the evidence of the applicant at page 10 of the transcript (Ground 1(e));
(4)Whether the tribunal misused the evidence with respect to the applicant’s return to Macedonia (Ground 1(d) and Outline 5(c)).
Issue (1) – Interpretation of s.91r
Section 91r of the Migration Act 1958 provides:
Section 91r - Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that 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.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the 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.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The tribunal set out the law with respect to s.91r at the commencement of its decision. I see no error in the way in which the tribunal has set out the law that must apply, nor in the manner in which it has approached the question of determining whether or not the persecution claimed was serious harm within the meaning of s.91r.
The tribunal said at page 14 of its decision:
The independent information cited above records instance of abuses perpetrated against Roma and others in Macedonia, as well as continuing social discrimination against Roma; it also records improvements in the institutions and structures made in recent years to curb such abuses. The applicant’s claims of persecution in the past, include being refused service in shops and experienced racial vilification as a Roma gypsy, as well as being unable to find work. The Tribunal is not satisfied that the claims of being refused service and being unable to find work constitute harm of the type and severity to constitute persecution. He stated that he was self employed and had a photography business from 1989 to 1997 in Skopje. The fact that he carried on this business for such a long time also does support his claims that the Roma have no rights in Macedonia. In terms of racial vilification, the applicant did not provide any actual examples of this, except for complaining in the most general terms about the treatment of Roma. The Tribunal is not satisfied that what the applicant described constitutes serious harm to persecution.
Indeed, the actual claims that the tribunal identified in its findings and reasons do not appear to be matters that would reasonably fall within the meaning of serious harm as defined in s.91r.
In the circumstances the application cannot succeed on this issue.
Issue (2) – Issues regarding Serbia, Montenegro, and applicant’s religion
The second issue was the claim that the tribunal failed to consider the applicant's claims with respect to Serbia and Montenegro and his religion.
As the respondent points out, the applicant was found by the tribunal to be a national of Macedonia, who had lived in Montenegro from 1981 to 1989. The tribunal considered and assessed the applicant's claims of persecution in his country of nationality, Macedonia, and found that he did not have a well founded fear in that country.
In the circumstances, the tribunal was not required to consider claims with respect to Serbia or Montenegro. In this regard, I am not satisfied that the tribunal erred in its approach.
The applicant’s religion was not an independent ground for the application. The application proceeded on the basis that he was a Muslim Roma, not that he was discriminated against as a Muslim. The tribunal considered his claim. This is not a ground for judicial review.
Issue (3) – Further matters raised at the hearing
The next issue was a claim that the tribunal failed to consider the applicant's evidence at page 10 of the transcript. The relevant passages commence on page 9 at line 25 and are as follows:
WITNESS: I came from Bar they started— I couldn’t find work. They told me, you are gypsy, go and carry something, like physical work That in that part why I’m leaving — who were nationalistically orientated, only myself different nationality and I was the one — the nationality - I can recall had things when I went to a shop, groceries there being physically attacked In some other shops they refused to serve me I had to walk 30 or 40 minutes different place to he able to buy
GENTILE: This was in Skopje?
WITNESS: Yes. Whoever has been aware that I’m a gypsy they been abusing me and telling me ‘Go away from here, it’s not your place’, go to your; like equivalent to Aboriginal land, go to your reserve.
MR GENTILE: Just as a matter of interest, how did they tell that you were a gypsy?
WITNESS: They knew me even in time of Former Yugoslavia —
INTERPRETER: He’s: been living in apartments since 1974.
MR GENTILE: So these were people who knew you from before?
WITNESS: Yes.
INTERPRETER: He‘s saying like people they in community they quite close and each person knows about others there. He saying —
WITNESS: (Through Interpreter) I’ve never been hiding, actually I have never been hiding that I am a gypsy by nationality.
INTERPRETER; He saying, nationality is not creating a human being inner, create your character and you shouldn’t be judged by that.
MR GENTILE: What do you think would happen to you if you returned to Skopje?
WITNESS: I can‘t go back to this apartment, because I expecting that during they night they can come back, even daily. There exists some paramilitary structures or groups.
INTERPRETER: He’s saying if somebody shoot me in the apartment for the public, that can say somebody shoot me because of the robbery or something like that.
MR GENTILE: But why would they shoot you?
INTERPRETER: Because they don‘t want me to live there because I’m a gypsy.
The tribunal did not appear to have considered the applicant's claims as outlined in the transcript that he had been physically attacked in a shop and refused service, causing him to walk 30 or 40 minutes to another shop to purchase groceries. A further aspect of his claim was that he was told to go away from the place in which he had been living and that he had not gone back to his apartment as he was concerned that someone may shoot him for living there because he was a Roma (gypsy).
These specific claims were not raised by the applicant in his statement drafted by his solicitor or migration agent, which only went so far as to say:
19. He was afraid to go for shopping as a young men at the age of 18-21 provoked him due to his ethnicity.
20. They would tell him, “We do not want Gypsies here in our suburb.” Go to the place where the Romas live. Go to Shutorisari. That was a place outside of the town of Skopje where Romas live isolated
21. On one occasion his brother from Australia was with him and he helped him against those gangs of boys which congregate at the front of the Supermarket
22.Some Romas families were killed by intruders in the suburb where he lived. Especially if the Romas were socially prominent or they were coming from abroad. Those killers were motivated with hatred towards Romas and at the same time they would he financially rewarded as a result of the plunge.
23. Romas children have been thrown from an old Turkish bridge. The Police ignored these events. Only social workers wanted to help although they were hopeless against those young tuffs.
24. As a Rom(a) (sic) he could not get employment. If he goes back to Macedonia apart from being unemployed due to his nationality he also is going to he exposed to attach of these hooligans. His life would not be worth much as those hooligans belong to the VMRO and the Police is unwilling to do anything against them.
On the material contained in the applicant's statement attached to his original application before the delegate, it is difficult to see that his case could have come within the meaning of ‘serious harm’ in s.91r. However, the allegations as expanded upon at the hearing involving a physical attack upon him at a grocery store and his fear that he would be shot if he did not move into the area set aside for gypsies, do provide the basis for a claim which could potentially fall within s.91r.
In this respect, it is arguable that the tribunal has failed to deal with an integer of the applicant's claim as these allegations, if accepted, could be a basis for concluding that the applicant has satisfied the particular criterion: see Applicant WAEE v Minister for Immigration [2003] FCAFC 184.
However, the tribunal ultimately made the following finding:
The applicant returned to Macedonia for about a month, six months after he arrived in Australia. Apparently this was because his wife wanted to see where he came from. The Tribunal does not accept that, had there been any fear of persecution, even of a subjective nature, the applicant would have returned to Macedonia so soon after leaving. In addition, the applicant has never claimed that he left Macedonia for fear of persecution.
In order to succeed in obtaining a protection visa, the applicant must show a fear of persecution. The persecution must be as defined under s.91r. Even if the tribunal erred in not considering all of the types of persecution he relied upon, and therefore did not fully consider his case under s.91r, the tribunal has concluded that he has no ‘fear’ within the meaning of the convention. The element of ‘fear’, whether it be defined as subjectively or objectively based remains a necessary element that the applicant must demonstrate. The tribunal has found that he has not satisfied this element. The applicant would have failed in any event.
Issue (4) – Use of evidence of return to Macedonia
The applicant complains that the tribunal erred in finding that he did not ‘fear’ persecution, on the basis that he had returned to Macedonia with his new partner. There can be no doubt that the applicant’s return to Macedonia is relevant evidence in determining whether he did, in fact, ‘fear’ persecution in the convention sense.
Whether the ‘fear’ must be both subjective and objective (the bipartite approach) has been the subject of academic debate in recent times. However, as I noted in MZWWP v Minister for Immigration & Anor [2006] FMCA 105:
There are numerous authorities of the Federal and High Courts adopting a bipartite approach (the respondent, in her outline, set out: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 570, Minister for Immigration & Ethnic Affairs v Eshetu (1999) 197 CLR 611 at 658, Minister for Immigration & Ethnic Affairs, Re; Ex parte: Miah (2001) 206 CLR 57 at [62], [70] per Gaudron J, Minister for Immigration & Ethnic Affairs v Khawar (2002) 210 CLR 1 at [61] per McHugh & Gummow JJ, Minister for Immigration & Ethnic Affairs v Respondents S152/03 (2004) 205 ALR 487 at [93], [101] per Kirby J, Thuraisamy v Minister for Immigration & Ethnic Affairs [1999] FCA 1632 at [7]-[8] per Wilcox, Einfeld & Tamberlin JJ, Suleiman v Minister for Immigration & Ethnic Affairs [2001] FCA 752 at [15] per Lee, Hill & Emmett JJ, Gomez v Minister for Immigration & Ethnic Affairs [2002] FCFCA 105 at [24] per Hill, O’Laughlin & Tamberlin JJ, SDAQ v Minister for Immigration & Ethnic Affairs [2003] FCFCA 120 at [12] per Cooper J and at [28] per Finkelstein J.
In the circumstances this issue does not demonstrate a reviewable error on the part of the tribunal.
I therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Reithmuller FM
Associate:
Date:
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