Malinov v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal made on 11 January 2001 affirming a decision not to grant him a protection visa.

The applicant's case 2 The applicant is a thirty-three year old Bulgarian citizen who first entered Australia on 7 December 1995. He returned to Bulgaria for a month and re-entered Australia on 16 October 1997. On 28 April 1988 he applied for a protection visa which was refused by a delegate of the Minister on 25 June 1998. He sought review by the Tribunal which conducted a hearing on 17 October 2000. Following a post hearing submission the Tribunal affirmed the decision of the delegate. 3 In his protection visa application the applicant advanced three reasons why he was a refugee within the meaning of the Convention. First, he had to leave Bulgaria because of the economic situation. Even though he was a veterinary doctor his salary was only enough to buy food and he had no money to pay for electricity or anything else. Secondly, his father desperately needed heart surgery but the family did not have the money, and anyway the operation could not be done in Bulgaria, so he needed to work in Australia and bring his father here. Thirdly, the applicant and two of his friends had made a vaccine for dogs against parvovirosis but criminals were pressing them to sell the discovery to them. If they started to produce the vaccine themselves the criminals would make "big trouble" for them. 4 In the hearing before the Tribunal the applicant expanded upon the third ground. He said that after graduating as a veterinarian in June 1995 he and two friends (A and B) commenced research on parvovirosis. They were seeking to identify the strain found in Bulgaria and develop a vaccine. At this time the vaccine used in Bulgaria was sourced in France and was expensive. After six months the research was successful and they sought to register a patent but others such as the Research Administrator and the head of the manufacturer wanted a percentage. After his return to Bulgaria in 1997 the applicant discovered that his friends had not been able to get a patent registered. A had been dealing with friends in organised crime and they wanted the discovery transferred to them for a low fee. B had refused and had come under increasing pressure from the criminals. They had caused B's wife to leave him and he had lost his apartment. He was in hiding and was a mental wreck. The applicant was scared at what had happened to B and wanted to leave Bulgaria as soon as he could. The applicant said that he had approached the police on his return to Bulgaria but they said they had too many worries to consider this very small matter. A had accused the applicant of going to the police and, when the applicant denied this, A gave him details of his report. The applicant said that A's friends in organised crime had links with the police. He feared that if he returned he would be in a life-threatening situation or "turned into an intellectual slave". 5 Following the Tribunal hearing the applicant's solicitor submitted that the part of the definition of refugee pertinent to the applicant was "membership of a particular social group". The evidence of the applicant was that he was part of a research team involved in scientific research. Therefore the applicant claimed that he belonged to "a group of researchers". After referring to statements in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, the submission contended that the applicant's fear of persecution from organised crime in Bulgaria was well-founded. Reference was made to the US Department of State's Bulgaria Country Report for 1998 and the Regional Survey of the World (Eastern Europe and Commonwealth of Independent States) 1999 which referred to the rising incidence of crime in that country. This was a phenomenon common to all the post Communist States of Eastern Europe but was complicated in Bulgaria by the imposition of sanctions on the former Yugoslavia. Huge fortunes could be made by illicit trading over the border and the organised gangs which did so were widely believed to be have collaborators within the administration and the police. The Minister of the Interior admitted that the police suffered from corruption and incompetence.

Decision of the Tribunal 6 After referring to the foregoing evidence of the applicant and his claims, the Tribunal referred to the State Department report which noted amongst other things that crime and corruption remained primary concerns of the government. The Tribunal stated that it accepted the applicant "generally as a witness of truth and accepts his factual claim as set out above". It found that his original claim relating to his family's economic position and his father's need for surgery did not give rise to a Convention claim. The Tribunal accepted the evidence that the applicant and his two friends had developed a strain specific vaccine for parvovirosis in Bulgarian dogs and that they were being pressured with threats of physical violence and intimidation to "sell" their rights to the vaccine to criminals associated with one of the three. 7 In reference to the applicant's solicitor's submission the Tribunal said: "The Tribunal accepts that researchers may be a particular social group not defined by the persecution itself, however there is no evidence before the Tribunal that the applicant or anyone else was or would be persecuted for reason of their membership of that particular social group. One can envisage such cases for example in Cambodia when Pol Pot ruled, researchers would have been viewed as a target group or sub-group of the intelligentia. The Tribunal finds that the applicant and his similarly reluctant friend were being targeted not because of their being researchers, but because they were people with something valuable that criminals wanted for one of the oldest motives 'greed'. That is, the Tribunal finds that the applicant having been a researcher was not any part of the motivation of his 'attackers'. The Tribunal finds that people with something of value is not capable of constituting a particular social group given the tests laid down in the authority quoted by the adviser above." 8 The Tribunal then went on to give an alternative ground for dismissing the application, namely that the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. The Tribunal referred to the decision of Beaumont J in Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657 at [55] where his Honour, applying Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, adopted as the test whether there is a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders. The Tribunal said: "The above decision [ie Tas] makes it clear that what is required is 'a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders'. The Tribunal finds that the country information (the 1999 US State Department's report) demonstrates that Bulgaria has this therefore the criminal's actions against the applicant would not constitute Contravention persecution, in any event. It is implicit, but the Tribunal now makes it explicit, by finding that criminals are not 'uncontrollable'. ... Tas makes it clear that the applicant is not entitled to a guarantee, although that is what he and most people would desire."

The applicant's case on review 9 Counsel for the applicant attacked the finding that there was no evidence that the applicant or anyone else would be persecuted for reasons of their membership of the particular social group namely researchers. Counsel said there was evidence which the Tribunal did not consider. It rather looked at the Cambodian analogy. It failed to discuss the evidence. Secondly, counsel said that although the Tribunal accepted the applicant as a witness of truth, it nevertheless made explicit findings that criminals are not uncontrollable and that the applicant was being targeted because of their greed. Counsel said that such conclusions were not open in the light of its acceptance of the applicant's evidence. There was no evidentiary material for the Tribunal so to find. Further it was said that the Tribunal did not put the decision in Tas to the applicant. Finally, counsel said that the Tribunal had failed to indulge in the "requisite speculation" as to the proper assessment of the applicant's Convention related claims. It had not applied the "what if I am wrong" test. It had failed to appreciate the decision in Applicant A and had not "discussed" the applicant's claim.

Conclusion 10 There must be a causal nexus between the actual or perceived membership of the particular social group and the well-founded fear of persecution: see Applicant A at 240. Whether such cause or connection existed was a question of fact for the Tribunal alone: see Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058 at [12]. The conclusion the Tribunal reached in the present case was plainly open on the evidence. The reference to the historical example of Cambodian persecution under Pol Pot was to illustrate by way of contrast the conclusion the Tribunal reached. At that time in Cambodia the Pol Pot regime saw the characteristic of being an intellectual as inimical to the kind of society they wanted and thus something which identified people who had that characteristic as a target for persecution. In the present case the view the Tribunal took was that criminals in Bulgaria simply wanted to make ill gotten gains. The fact that the applicant and his colleagues had the potential to acquire money by one particular means, namely scientific research, was purely fortuitous. For the Tribunal to reach this conclusion did not involve any inconsistency with its acceptance of the applicant as a truthful witness. 11 There was no legal obligation on the Tribunal to "discuss" the applicant's evidence. It accepted what he said about his history, and in particular his research and the threats of the criminals. The critical step was for the Tribunal to assess whether there was a causal connection in the relevant sense between the threats and the applicant's membership of the social group constituted by researchers. 12 There was no obligation on the Tribunal to put the decision in Tas to the applicant. This was a matter of law. In any case breach of natural justice is not a ground for review: s 476 (2)(a) of the Act. Finally, there was no error in the Tribunal applying the Tas test as to the extent of protection that might be available from the authorities. In any event, as counsel for the applicant properly conceded, if there is no error disclosed in relation to the causation issue, the applicant must fail anyway.

Order 13 The application will be dismissed with costs including reserved costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.