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MIGRATION - Protection visa application - finding of no serious threat of harm - matters raised questions of fact and degree for the Tribunal to decide - no jurisdictional error.

VHAI v Minister for Immigration [2004] FMCA 792 (12 November 2004)

VHAI v Minister for Immigration [2004] FMCA 792 (12 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VHAI v MINISTER FOR IMMIGRATION
[2004] FMCA 792




MIGRATION - Protection visa application - finding of no serious threat of harm - matters raised questions of fact and degree for the Tribunal to decide - no jurisdictional error.




Judiciary Act 1908 (Cth), s.39B

Migration Act 1958 (Cth), s.91R

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709

King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Arumugam v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 251


Applicant:
VHAI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1214 of 2002




Delivered on:


12 November 2004




Delivered at:


Melbourne




Hearing date:


15 September 2003




Judgment of:


Phipps FM




REPRESENTATION

Solicitors for the Applicant:


J. A. Fernandez




Counsel for the Respondent:


Mr Fairfield




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application is dismissed.

(2) The Applicant pay the Respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1214 of 2002

VHAI



Applicant

And

MINISTER FOR IMMIGRATION & MULTLICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant applies pursuant to s.39B of the Judiciary Act 1908 (Cth) to review a decision of the Refugee Review Tribunal.

2. The applicant claimed to be a male national of Uzbekistan. He claimed that he was an ethnic Armenian and of the Christian religion.

3. He departed Uzbekistan on 4 October 2000 and arrived in Australia on 6 October 2000 on an Uzbekistan passport issued to him on 12 March 1998 and valid until 7 September 2017. He arrived in Australia on a subclass 421 Sport visa valid until 14 November 2000. He had departed Uzbekistan and arrived in Australia as a member of the Uzbekistan national kick boxing sporting team to take part in a competition in Melbourne.

4. By application received by the respondent on 13 November 2000, he applied for a protection visa . On 28 December 2000, a delegate of the respondent refused the application. By application dated 15 January 2001, the applicant sought review of the delegate's decision by the Tribunal.

5. By a decision dated 31 July 2002 and handed down on 23 August 2002, the Tribunal affirmed the decision of the delegate.

6. By application filed 18 September 2003 in the Federal Court of Australia, the applicant applied pursuant to s.39B of the Judiciary Act for relief in respect of the decision of the Tribunal. On 4 November 2003 Kenny J. transferred the application to the Federal Magistrates Court.

The applicant's claims

7. In support of his initial application for a protection visa, the applicant had provided a written statement in which he claimed:

a) that after he finished secondary school, he had started to face discrimination from the lecturers at university in Uzbekistan because he was Armenian;

b) that he could not find work because he was Armenian;

c) that the law-enforcement agencies often got involved in ethnic issues;

d) that it was impossible to walk the streets at night as one could be stopped by the police; and

e) that terrorist activity involving ethnic issues had increased lately.

He also made an oblique reference to having suffered harm by the police who had aimed at his kidneys but did not leave a mark.

8. In his application to the Tribunal, the applicant did not provide any further written material in support of his application. He gave evidence at the hearing with the assistance of an interpreter. He was represented at the hearing.

9. At the hearing he claimed he had faced discrimination in his education. He said that he believed this had occurred because of his ethnicity. He also said that he had been able to find employment but not in his profession.

10. He was asked whether he had experienced any further problems. He referred to two incidents which had involved the police. The first had occurred in the mid-1990s when he and his friends had been walking in the street. He claimed that he was stopped and that he and his friends were taken to the police station. They paid money and were then released by the police. He said that he did not report the incident.

11. The second incident occurred about five years later just before he departed Uzbekistan in 2000. He and three friends had been at a disco. He claimed that the three friends were respectively Russian, Armenian and Uzbek. He claimed that the police entered the building. He said that the police routinely searched for drugs.

12. He said that the police approached him and his friends and turned over the table. They were then required to come to the police station. He said that his Uzbek friend had managed to slip away unnoticed into the crowd at the disco. He stated that he had been hit a little bit. He said that he had not required medical treatment as the hitting had not been very severe. He confirmed that this was the incident to which he had referred to in his written statement.

13. He claimed that the Uzbek friend, who had managed to slip away unnoticed, had contacted a relative of the applicant's who had arrived at the police station with an ethnic Uzbek friend who was a police officer. The applicant and his friends were then released.

14. The Tribunal referred the applicant to his claim in his protection visa statement that in Uzbekistan "law-enforcement agencies often get involved in ethnic issues" and asked if he wished to comment further. The applicant said that Uzbek authorities stopped people regularly to check their documents. If individuals were unable to produce the necessary documents, they would be taken to a police station to clarify their identity. The applicant noted that Uzbeks could often identify people's ethnic background by their physical appearance.

15. The Tribunal referred to the claim in the applicant's protection visa statement that "the terrorist activity involving ethnic issues has increased lately" and asked the applicant for any additional comment or information. The applicant said that in Uzbekistan "Everything was possible. Terrorists were everywhere".

The Tribunal's findings

16. The Tribunal referred to a United States Department of State Country Report on Human Rights Practices in Uzbekistan. The Tribunal said that it noted the fact that Uzbekistan was an authoritarian state with limited civil rights; that the Government's human rights record remained very poor; that police and National Security Service personnel tortured, beat and harassed persons; that persons were detained for political or religious reasons; that the Government restricted freedom of religion and harassed and arrested hundreds of non-official Islamic leaders and believers, citing the threat of extremism; and that the Government severely restricted freedom of speech and of the press.

17. The Tribunal said that the applicant agreed that the percentage of minorities in government or politics did not correspond in all cases to their percentage of population. The applicant agreed with country information that ethnic groups other than Uzbeks, particularly Russians, complained frequently that the job opportunities were limited for them and that senior positions in government and business were reserved for ethnic Uzbeks although there were exceptions.

18. The Tribunal assessed the applicant's claims against the Republic of Uzbekistan as his country of nationality. It said that the applicant's claims for a protection visa were based on his concerns that as a member of an ethnic minority in Uzbekistan he is discriminated against, including in relation to employment. He was also concerned about the general security situation in that country and terrorist activity involving ethnic issues. He feared that if Uzbek authorities learnt that he had applied for refugee status in Australia, he would be detained, arrested and jailed if he returned to the country.

19. The Tribunal said that given that the applicant had not been denied the right to an education and had been able to complete his university qualification, it was not satisfied that he had suffered discrimination in relation to obtaining an education. The Tribunal considered the applicant's claim that his marks may have been reduced and he may have been failed in some subjects because of his ethnicity. The Tribunal said it was unable to accept that he had been discriminated against. The Tribunal found that the applicant had not been denied the right to an education and had not been discriminated against in relation to his education for reason of his ethnicity.

20. The Tribunal considered the applicant's claim that in Uzbekistan, employment priority was given to ethnic Uzbeks and that consequently, he had not been able to find work in his chosen profession. The Tribunal said it was satisfied that ethnic minorities in Uzbekistan, including ethnic Armenians, may face discrimination in relation to obtaining employment. However, the Tribunal said it was not satisfied that such discrimination amounted to serious harm or persecution. It said that while the Tribunal accepted that the applicant might not have been able to find employment in his chosen area, it found that he was unable to obtain gainful employment and he had not been denied the means to a livelihood.

21. With regard to the two incidents which the applicant described, the Tribunal found that neither was serious harm amounting to persecution.

22. The Tribunal considered the applicant's claims that law-enforcement agencies often get involved in ethnic issues, authorities stopped people to check their documents and that terrorist activity involving ethnic issues had increased lately. It did not consider that any of these matters gave rise to a serious risk of harm to the applicant.

23. The Tribunal considered what might happen to the applicant if he returned to Uzbekistan. It noted his concern that if the Uzbek government was aware he had applied for refugee status in Australia, he could be detained and arrested and imprisoned following his return to the country. The Tribunal thought there was no reason why the Uzbek authorities would be aware of the applicant's protection visa application in Australia. It noted that he would be able to return to Uzbekistan on his own passport which gave no indication of his application. It also noted that the applicant's visit to Australia was voluntary. It found that the authorities would not question him about why he had not returned immediately following completion of his intended visit.

24. Finally, the Tribunal found that the applicant faced a remote chance of being harassed and discriminated if he returned in the future. It said that in the unlikely event that he was harassed, such as being stopped for an identity check which he should be able to prove, this would not be serious harm amounting to persecution.

The applicant's arguments

25. Mr Fernandez, who appeared for the applicant, argued that the Tribunal had failed to carry out its task properly in that it had not properly considered the applicant's claims, had not considered essential elements of the claims, and had not properly identified the social group to which the applicant applied. He referred to SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC, SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709, and the King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407.

26. Section 91R the Migration Act 1958 provides:

(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.

27. The applicant claimed that he had been persecuted and discriminated against in his education and employment. The argument for the applicant was that the evidence before the Tribunal showed that there was discrimination against ethnic Armenians in education and employment and specifically against the applicant.

28. The Tribunal found that the applicant had been able to complete his education and had been able to obtain employment, even if it was not in his chosen field. It accepted that while economic conditions were difficult in Uzbekistan, it did not rule out that the reason for the applicant's inability to attain work in his chosen profession was due to his ethnicity. Nevertheless, the applicant had been able to obtain gainful employment.

29. To constitute persecution these matters had to amount to serious harm as defined in s.91R. It was a matter of fact and degree and it was a matter for the Tribunal. The Tribunal has considered the essential claim put forward by the applicant. It has considered his education and his employment and it has decided that that did not amount to persecution as defined. It was a question of fact for the Tribunal. There has been no error by the Tribunal in coming to the conclusions it did.

30. The argument for the applicant made a passing reference to identifying the social group to which the applicant belonged. That was not the applicant's case. His case was that he was persecuted because of his ethnicity. There is nothing in the material to suggest that he belonged to a group other than Armenians in Uzbekistan.

31. The third matter referred to by the applicant was the two incidents when he was detained and the risk of being stopped by the authorities and of violence in Uzbekistan. The Tribunal has considered these incidents and the situation in Uzbekistan. The Tribunal found that the applicant had not been persecuted in the past. He was not of a continuing interest to the police after either incident. They were five years apart. He was able to leave the country legally. The Tribunal also considered the applicant's claim that he might be stopped to prove his identity and was satisfied that that would not constitute serious harm amounting to persecution. There has not been a failure by the Tribunal to consider the applicant's claim. It was for the Tribunal to decide whether the circumstances gave rise to a risk of serious harm and it has decided that they did not.

32. The Tribunal's finding that the authorities in Uzbekistan would not know that the applicant had made a protection visa application in Australia is a finding which was open to the Tribunal. Mr Fernandez criticised it as being the Tribunal's opinion. However, the Tribunal gave its reasons for making the finding. There was no failure to deal with the relevant issue or to deal with it properly

33. In Arumugam v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 251, Lindgren J. said at [37]:

The present issue is one of fact and degree and so is precisely the kind of issue the determination of which is a matter for the RRT not for this Court: cf Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (Hill J) at 271. While I have sympathy for the applicant, the conclusion reached by the RRT does not appear, on the material before me, to be one that was not open to it.

34. The issues in the present case were one of fact and I agree. It was for the Tribunal to determine those matters, not the court.

35. There has been no jurisdictional error shown. The application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 24th November 2004
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