Applicant MZMAI v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 799

FEDERAL COURT OF AUSTRALIA

Applicant MZMAI v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 799 APPLICANT MZMAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL INDIGENOUS AFFAIRS NO. V1085 OF 2003 HEEREY J 21 JUNE 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1085 OF 2003

BETWEEN: APPLICANT MZMAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 21 JUNE 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Appeal is dismissed. 2. Applicant will pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1085 OF 2003

BETWEEN: APPLICANT MZMAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 21 JUNE 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal upon a decision of the Federal Magistrates Court, which dismissed an application for review of a decision of the Refugee Review Tribunal. The appellant is a citizen of Lithuania, of Russian ethnicity, born in 1973. She arrived in Australia on 21 April 2001 and lodged an application for a protection visa on 2 May 2001. That application was rejected by a Delegate of the Minister on 15 June 2001 and she then applied to the Tribunal for review. In her application for review by the Tribunal dated 15 July 2001, she included the following ""Now, just because I'm not an ethnic Lithuanian (see my Birth Certificate attached), I am being treated as a second-class citizen, and the problems, that were described in my original Applications, stem from this fact. From this point of view, I guess, we, the non-ethnic Lithuanian owners and employees of small businesses, are subjected to constant extortion and threats. As described in my original Application, I was kidnapped. This extortion act took place not because my de-facto and I were rich, there lots and lots of other people, ethnic Lithuanians, who are really well off – no, it was done to us because extortion from non-ethnic Lithuanians is not considered to be a criminal act, and nobody takes it seriously. I was kidnapped on March 24, 2001, released on March 30, 2001, delivered to the hospital on March 30, 2001, * and I lodged an official complaint with the local police on March 30, 2001. I received a letter from the police, on April 06, 2001, that they could not find culprits, therefore, there is nobody to punish and nothing to prevent. (* indicates that I am attaching facsimile of the original documents which my mother mailed to me, and of which the translations will be submitted to you as soon as they are ready.) Now, I believe that I do have grounds to say that I asked local authorities (the police) to help me and to protect me, but since they failed to do so, I am not willing to subject myself to further risks. Furthermore, what had happened to me took place exclusively because of my ethnicity – similar things happen in many 'new and emerging' countries where ethnic minorities are being oppressed. I believe, that in the light of the said above, I am entitled to the status of a refugee. I am asking you to review my case in my favour. Thank you." 2 There was before the Tribunal a certificate from a hospital in Lithuania which, in translated form, reported her being treated at the Republic of Lithuania Ministry of Health on 30 March 2001. The report records a diagnosis on admission of concussion, left radial wrist fracture, facial and body injuries and anaemia. The history and diagnosis are recorded as follows: "Patient brought by ambulance complained of head, hand and whole body pain, nausea, general weakness. X-ray revealed fracture of ? bones in left-radial head. Plaster cast applied. Compressors and disinfectant solution applied to the legs. Neurological consult commotio cerebri (brain concussion)." There then follows details of various medications, and concludes: "Discharged with satisfactory health. Further outpatient treatment planned." 3 There was also before the Tribunal a detailed letter from migration agents Australian Migration Promotion and Investments dated 7 November 2002. This notes, amongst other things, that: "The appellant has remained consistent in her claims that her, together with her former life and business partner, were the targets of extortion by criminal elements in Lithuania that our client claims to have links to organised crime (mafia). Further, our client has presented evidence of physical injury amounting to serious harm sustained at the hands of these criminals, and also has provided evidence of the report she made to the police." Under the heading "Convention Grounds" the letter states: "We submit that our client's claims are predicated on the Convention grounds of ethnicity and imputed political opinion. The argument in favour of these propositions is based on inextricable links between crime and the endemic corruption that exists within the various arms of government, as demonstrated by the independent country information presented above." Later in the letter the political opinion ground is developed in this way: "We submit that the reticence of the Lithuanian authorities to act on our client's report of the harm she suffered at the hands (sic) criminal elements is enough to have caught her with an adverse imputed political profile. The obvious exchange of information between criminal elements and corrupt officials means that any report made by our client will be viewed as against the interests of those officials invested with the civil duty to maintain law and order. Further, as the levels of corruption courses through to the highest levels of law enforcement agencies and the judiciary, our client could in no way be guaranteed the effective protection of the Lithuanian state." 4 The Tribunal in its decision referred to the history given, particularly in relation to the abduction. It recorded its findings and reasons as follows. "FINDINGS AND REASONS Based on the information of the Department's file, the Tribunal finds that the applicant is a Lithuanian citizen. The Tribunal finds that the applicant is ethnically Russian. The Tribunal does not accept that the applicant or her partner were the victims of extortion. The applicant's inability to name the people committing this crime, despite claiming that their identities were well known and that they operated very openly, rendered the claim implausible. Her own evidence was that the former de facto partner was paying money on a monthly basis for the entire period she was with the business i.e. 1999 and 2000. She answered the phone and the door sometimes when they came. If this was true, she would have had to have been able to name them. She would also have been familiar with the identity of the boss of the operation (she did say she assumed they were working together, so someone must have been more or less in charge). It follows that the Tribunal does not accept that the applicant was abducted in the circumstances she claimed. The Tribunal accepts that the applicant was treated in hospital from 30 March 2001 but does not accept her injuries occurred in the circumstances she claimed. Even if the Tribunal were in error in the foregoing findings, and even if it could be established that a real chance of serious harm still existed given the change in her circumstances, the Tribunal does not accept that the harm was or would be directed towards the applicant due to her ethnicity or any other Convention reason. There is no evidence that the extortionists were motivated even in part by anything other than the desire for money. Businesspeople (or their employees) are not a particular social group in Lithuania. The applicant's gender could have been a factor in her abduction in the sense that her vulnerability made the crime easier to perpetrate, but there is no evidence it was a motive in the Convention sense. The Tribunal does not accept that women are a particular social group in Lithuania, that is, that they are united and perceived as distinct from Lithuanian society in general by their gender. The motive, if the claimed scenario was true, was to put pressure on the de facto partner. Any future harm would be to stop her from causing the criminals any legal problems. To deal with an argument made by the adviser, the Tribunal does not accept that the applicant has in effect challenged government policy on corruption and is therefore at risk of persecution due to imputed political opinion. First, the claimed link between the criminal gangs and local police was no more than speculative, given the vagueness of the evidence as to the identity and structure of the local mafia. Secondly, her own evidence was that her partner had paid money repeatedly to the extortionists. They ceased to pay not on principle but because they could no longer afford it. Thirdly, the Tribunal does not accept that the applicant reported any crimes to the police: the applications of herself and her former partner were explicit enough in that regard, notwithstanding the terms of question 40. The police letter has either been fabricated or does not relate to the claims. (That being the case, and since the country information indicates that laws and institutions to tackle crime, corruption and human rights abuses, are imperfect but do exist in Lithuania, the Tribunal would, if necessary, have found that an adequate level of state protection was available to the applicant regardless of her possible politico-cultural or gender-related reticence.) The Tribunal does not accept that the applicant faces persecution on the grounds of her ethnicity or any other Convention ground. The country information indicates the situation for Russians is benign in Lithuania. It is possible the applicant experienced education and employment discrimination in the early days of independence. She did, however, find employment. Even if legislation is still required, there is recourse for those who feel they have been discriminated against, via the ombudsmen and other human rights mechanisms, underpinned by the Constitution. The chance of the applicant suffering serious harm as a result of her ethnicity, given the degree of her assimilation and her fluency in Lithuanian, is remote. The fact that the applicant did not perceive her Russian ethnicity as worth mentioning in her protection visa application is clear enough indication that she did not fear being seriously harmed in Lithuania for that reason. Applicants do not need to use legal terminology to say what they are afraid of, and the concept of racial persecution is universally recognised. The application form expressly invites it to be considered. Given the claims and evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Lithuania within the meaning of the Convention. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. DECISION The Tribunal affirms the decision not to grant a protection visa." 5 The Tribunal then concluded that, having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had a protection obligation under the Refugees Convention, as amended by the Refugees Protocol, and therefore did not satisfy the criterion set out in s 36(2) of the Migration Act for a protection visa. 6 The learned magistrate noted that in the appellant's initial application for a protection visa, no reference to any Convention ground appears. She simply claimed to fear persecution by criminals. Later, before the Tribunal, her claim was characterised in a variety of ways, but never put in the way that is now suggested before this court; namely, a particular social group of business people and employees of non-Lithuanian ethnicity. Indeed, the applicant claimed to fear persecution by reason of her ethnicity and apparently by reason of her sex. 7 Then in par 21, the learned magistrate said "21. In her written submission to the Tribunal the applicant focussed on her plan to fear persecution by reason of her Russian ethnicity. In the context of developing that claim she gave as an example that non-ethnic Lithuanian owners and employees of small businesses were subject to constant extortion and threats. It has been held that extortionists are not implementing a policy, but are simply extracting money from a suitable victim. Their forays are disinterestedly individual, and their victims not members of a particular social group, even if the argument had been put which it was not (see Ram v Minister for Immigration and Indigenous and Multicultural Affairs (1995) 57 FCR 565 per Burchett J at 569). It was not put that she feared persecution by reason of her membership of the particular social group described as non-ethnic Lithuanian owners and employees of small businesses. At the conclusion of the applicant's letter to the Tribunal wherein the referred to statement was made the applicant wrote: What had happened to me took place exclusively because of my ethnicity." 8 The magistrate went on to note that nowhere before the Tribunal did the appellant advance the claim that she feared persecution by reason of her membership of a particular social group, being "business persons or employees of non-Lithuanian ethnicity". The magistrate observed that her evidence was inconsistent with this claim; she claimed every business in the country had to pay money to the racketeers, and that extortion was so normal, people did not even discuss it. The magistrate concluded: "23. The core reason for the applicant failing before the Tribunal was that the Tribunal did not accept her evidence. Findings of fact are a matter for the Tribunal. Those findings were expressed in emphatic terms. The Tribunal found that no conduct that could constitute persecution on any grounds had occurred. Nowhere in the reasons and on a fair reading of the reasons as a whole is it apparent that the Tribunal itself had any real doubt as to its findings. Its findings which commenced 'Even if the Tribunal were in error in the foregoing findings' appeared to have been included in the reasons as a device for the introduction of additional reasons as to why the Tribunal found the applicant's claim to fail. It is quite clear that the earlier findings of fact of the Tribunal were not subject to any later consideration and were not provisional. The language used by the Tribunal is similar to that which Weinberg J in Applicant UP & Minister for Immigration and Multicultural Affairs [2001] FCA 1035 held to not constitute an invocation of the 'what if I am wrong' test (see Minister for Immigration and Ethnic Affairs v Wu Shan Liagn (1996) 185 CLR 259 at 291-293 per Kirby J; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 235-236 and 239-241)." 9 On the appeal, counsel for the appellant commenced with the argument that the magistrate was wrong in failing to find that the Tribunal had not dealt with the Convention ground of a particular social group of non-ethnic Lithuanian owners and employees of small businesses, and whether the Tribunal therefore erred in law in the way identified by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. Counsel said that in the passage already quoted, where the Tribunal said: "Business people (or their employees) are not a particular social group in Lithuania." It recognised that there was a particular group raised on the facts. It was then obliged to deal with the correct formulation of that social group; namely, non-ethnic Lithuanian owners and employees of small businesses. The Tribunal, counsel for the applicant said, did refer to that group, but not in the correct formulation. 10 I do not think there is any substance in this argument. Read as a whole, and particularly in light of the application and the migration agent's submission that was before it, it is plain that the particular social group now contended for was simply not put before the Tribunal. 11 In any event, there is the second obstacle facing the applicant namely, that the Tribunal made a finding as of fact which rejected a central part of her argument; namely, that she was abducted and held for several days and injured by the persons committing the extortion. I think this was clearly a firm finding in the way discussed by Weinberg J in Applicant UP v Minister for Immigration and Multicultural Affairs [2001] FCA 1035. That conclusion is not affected by the fact that the Tribunal accepted that the appellant was in fact treated in hospital and that she suffered the injuries set out in the hospital report. It hardly needs stating, of course, that injuries of the kind recorded could have occurred in an infinite variety of ways. 12 I do not see any logical reason why the Tribunal's finding – accepting that the injuries occurred, but rejecting that they occurred in the way that the appellant alleged – in some way made the findings rejecting her claim of persecution "tentative" or "provisional". What followed, therefore, was simply additional reasons for rejecting her claim on a counterfactual basis, which assumed that what she said had been accepted. This was a reasonable thing for the Tribunal to do. Obviously, where there are separate factual or legal bases for rejecting a claim, it is quite desirable for the Tribunal to make appropriate findings, in case it may subsequently emerge that some of the findings are infected by legal error. 13 When the Tribunal said "business people or their employees are not a particular social group in Lithuania", it was doing no more than illustrating by way of a negative hypothesis the principal point it was making about the lack of a Convention reason, in the same way as it noted that women were not a particular social group in Lithuania. Read as a whole, and fairly, the Tribunal was not saying that business people or their employees had been advanced by the appellant as a particular social group for the purposes of making out a claim of feared persecution on convention grounds. 14 The appeal will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.