M20 of 2003 v Minister for Immigration
[2005] FMCA 902
•7 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M20 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 902 |
| MIGRATION – Protection visa – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.417, 477(1A) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005) VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | M20 of 2003 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MR G BREWER |
| File Number: | MLG 833 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 7 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr E.J.C. Heerey |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application as amended be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 833 of 2004
| M20 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MR G BREWER |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant relies upon an amended application filed on
15 December 2004, together with contentions of fact and law filed the same day. He is unrepresented. He seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 30 August 2001. The RRT affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a protection visa.
At the commencement of these proceedings, after the court's attention was drawn to a recent High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005), I made a direction that all court documents in these proceedings should include as a second respondent Mr G. Brewer as a member of the Refugee Review Tribunal.
The applicant is a 30‑year‑old male citizen of India of Andhra ethnicity and Christian faith. He arrived in Australia on 12 September 1996 under an Indian passport, and an Australian student visa issued to him by the respondent's Department in New Delhi was valid until 30 September 1998. On 1 September 1998 a further student visa was issued to the applicant which was valid until 21 September 2001. The applicant made an application on 26 June 2000 for a protection visa. Attached to that application, which appears in the court book, was a written statement setting out the applicant's claimed fear of persecution in India based on his Christian religion and imputed political opinion arising from his involvement with the Congress Party. On 30 June 2000 the delegate made a decision refusing to grant the protection visa and on 28 July 2000 the applicant lodged an appeal to the RRT for review of the delegate's decision. As indicated earlier, the RRT by a decision dated 30 August 2001 affirmed the delegate's decision not to grant a protection visa.
On 4 November 2002 the applicant wrote a letter to the first respondent's predecessor requesting that he consider exercising public interest power under s.417 of the Migration Act 1958 (the Act) to grant the applicant a visa. That request was denied and the denial of the request communicated to the applicant by letter dated 21 January 2003. On 3 February 2003 the applicant lodged an application in the High Court of Australia for an order nisi for writs of prohibition and certiorari in relation to the RRT decision. On 25 February 2004 Hayne J of the High Court ordered the matter be remitted to the Federal Court. On 23 June 2004 North J of the Federal Court transferred the matter to this court.
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).
In the amended application the applicant in providing particulars in support of the assertion that the decision of the RRT is affected by jurisdictional error has essentially sought to challenge what could properly be regarded as findings of fact. Indeed throughout the particulars subjoined to paragraph 3 of the amended application filed on 15 December 2004 it is clear that the applicant asserts that he disagrees with a number of conclusions which had been reached by the RRT. By way of example, he disagrees with the RRT's conclusion that even if he did have a fear for his safety, he could avail himself of protection of the state and refers to the evidence he gave of making complaints to police but with the police not acting upon those complaints. He disagrees with the conclusion of the RRT when it refers to him encountering occasional adverse consequences based on Christianity and concluding that that falls short of persecution. He further disagrees with the conclusion of the RRT that it would be reasonable to expect him to relocate to another part of India.
In the RRT decision the claim advanced by the applicant has been referred to in some detail under the heading ‘Background and Claims’. The RRT then proceeds to discuss the evidence and make findings. In the reasons for its decision it reaches conclusions in relation to those matters raised by the applicant in his application. By way of example, I note at court book page 55 the RRT states the following:
“In light of the applicant's actual profile, the absence of any independent evidence that Congress (I) supporters are generally targeted by political opponents, and the length of time the applicant has been away from India, the Tribunal does not find credible his claim that supporters of the TDP, or Hindu nationalists, or others are still targeting him through calls to his family for any Convention reason.”
The RRT then proceeds to consider country information from various sources in relation to those aspects of the claim made by the applicant. It otherwise refers to attacks on Christian members of the community and in particular attacks apparently by Hindu fundamentalists. It states towards the end of its decision the following at page 58 of the court book:
“In assessing the applicant's claims based on his Christianity the Tribunal finds that he has encountered occasional adverse consequences amounting to discrimination and falling short of persecution. Looking at the present situation and to the foreseeable future, available information indicates that any chance a person such as the applicant would face consequences amounting to persecution by reason of his religion is remote, and the Tribunal finds accordingly. In reaching that conclusion the Tribunal also notes that the applicant's parents and sister remain in the home area without facing persecution, despite the family's adherence to the Christian faith.
The Tribunal has, in any event, also considered whether, in line with the principles enunciated in the matter of Randhawa v MILGEA (1994) 124 ALR 265, it would be reasonable to expect the applicant to relocate to another part of India if he has an actual fear of returning to his home area. It notes that the applicant is young and single. He is well educated and has a range of work experience. He has coped with living away from his own country for some time in Australia where he has developed virtual fluency in English, a language that is widely spoken in major centres such as New Delhi. … He also speaks Telegu and Hindi, even though he might not be altogether fluent in the latter. If he were to have a subjective fear of persecution in relation to his own State the Tribunal finds it would be reasonable for him to relocate to another place such as New Delhi or another large city away from certain areas the TDP has any strong influence and where religious tolerance is greater.
It is probably fair to conclude that the RRT, after finding that the facts of this particular application are consistent with the principle set out in the matter of Randhawa, it then proceeds to conclude that it would be reasonable to expect the applicant to relocate to a major centre available to him, but otherwise in considering all of the circumstances it found the applicant does not have a well‑founded fear of persecution for any convention reason.
It is clear to me from a proper reading of those reasons that in a sense the further finding by the RRT in relation to relocation by the applicant was unnecessary in circumstances where the RRT has indeed found that the applicant does not face what is regarded as a real prospect of persecution and indeed specifically when assessing the claim made by the applicant does not accept that those facts and circumstances relied upon by the applicant are sufficient to constitute a real fear of persecution for convention reasons. Nevertheless, having made those findings, it is clear to me that the RRT has indeed considered the facts that were then reasonably open to it based upon the material placed before the RRT by the applicant.
In the circumstances, applying the authorities to which I have referred, I do not find that there has been any error of a kind which would constitute jurisdictional error in this application. The RRT has embarked upon its fact‑finding process in a manner that was open to it free of any error and has certainly not committed any error which would attract judicial intervention by way of judicial review. Where there has not been any jurisdictional error identified, I accept this is a privative clause decision and the application is otherwise barred by operation, as submitted by the respondent, of s.477(1A) of the Act given it was not made within 28 days of the applicant's notification of the RRT's decision.
It follows in this application that the appropriate order of the court is that the application be dismissed with costs for the reasons stated.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 June 2005
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