M208 of 2002 v Minister for Immigration
[2004] FMCA 585
•14 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M208 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 585 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – jurisdictional error – protection visa – submission that incomplete application form was not a valid application – Tribunal’s reasons in relation to assessment of credibility. |
Migration Act 1958 (Cth), ss.36, 45, 424A, 430, 474
Migration Regulations 1994 (Cth), r. 2.07
Craig v South Australia (1995) 184 CLR 163
James v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1383 (8 November 2002)
Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (30 June 2000)
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449
NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411
(3 April 2002)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural Affairs;Ex parte Durairajasingham (2000) 168 ALR 407
SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003)
| Applicant: | APPLICANT M208 OF 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
| File No: | MZ 415 OF 2003 |
| Delivered on: | 14 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 15 April 2004 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondent: | Ms McDonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the application be dismissed.
THAT the applicant pay the respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 415 of 2003
| APPLICANT M208 OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant seeking judicial review of the decision of the Refugee Review Tribunal on
20 June 2002 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection (class XA) visa.
The history
The applicant is a male Sikh from Patiala in the Punjab, India. He came to Australia on 12 October 1998 and has remained in Australia during this time except for a period of twelve days in July of 2000. On 13 October 2000 the applicant applied for a protection (class XA, sub-class 866) visa.
The applicant claimed that he feared persecution for political reasons as his family is accused of having assisted a member of the Kashmiri Muslim militants. He stated that this suspected assistance meant that he was viewed as a supporter of the militants by the authorities in India. Further, the applicant claimed that since his family’s alleged involvement, his father had disappeared, his brother’s whereabouts were unknown and he, the applicant, had been harassed by the police.
On 13 December 2000, a delegate from the Department of Immigration and Multicultural Affairs refused to grant the protection (class XA) visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 8 January 2001. In the Tribunal decision of 20 June 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class XA) visa. Specifically, the Tribunal held that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the Tribunal found that the applicant did not satisfy the criteria of section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal determined that there was no real chance that the applicant would suffer persecution for political reasons if he were to return to India and his fear was not well-founded.
On 2 December 2002, the applicant’s solicitors filed an affidavit with the High Court of Australia seeking review of the Tribunal’s decision. The affidavit stated that following the decision of the Tribunal on 20 June 2002, the applicant requested that the Minister for Immigration & Multicultural & Indigenous Affairs exercise his discretion under section 417 of the Migration Act; the Minister declined to do so in a letter dated 8 November 2002. Further the applicant stated the grounds of review against the first respondent (the Minister) and second respondent (the Tribunal member determining the review), claiming that:
a)the Tribunal had failed to accord the applicant procedural fairness; and
b)there was a failure by the Tribunal to comply with sections 418(3), 420 and 424(1) of the Migration Act.
In terms of the first respondent, the applicant also claimed, in his Draft Order Nisi, that the Minister’s decision not to consider exercising his power to make a decision pursuant to section 417 of the Migration Act was flawed.
On 7 February 2003, Hayne J of the High Court of Australia ordered that further proceedings in this matter be transferred to the Federal Court of Australia, in addition to other procedural orders. The matter proceeded before Marshall J of the Federal Court, being V 209 of 2003, on 23 April 2003. In addition to procedural orders, His Honour transferred the matter to the Federal Magistrates Court.
In an amended application filed on 10 June 2003, the applicant altered the grounds of review; the applicant claimed that the Tribunal had failed to comply with sections 424A and 430 of the Migration Act. In the applicant’s contentions of fact and law, which were filed in conjunction with the amended application, the applicant specifically argued that the Tribunal had made a jurisdictional error by failing to have regard to the relevant materials when forming certain conclusions and not setting out the reasons for such conclusions. The applicant also claimed that certain information should have been given to him for comment.
In rebuttal, the respondent’s contentions of fact and law, filed on 8 July 2003, stated that the Tribunal did not err in law as:
a)there had been no failure to comply with section 430 of the Migration Act (which the respondent also argued was not of itself a ground for review) as the Tribunal had set out its findings and had considered the relevant matters; and
b)there had been no failure to comply with section 424A as there was no information that the Tribunal was required to provide to the applicant, with the information in question falling within the ambit of the section 424A exceptions.
The law
Section 45 of the Migration Act requires:
(1)Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
The above section should be read in conjunction with regulation 2.07 of the Migration Regulations 1994 (Cth), which states:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
Section 430 of the Migration Act provides as follows:
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Section 424A of the Migration Act provides as follows:
(1)Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 (“Yusef”) at 351.
An administrative tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
The Full Court of the Federal Court in SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003) at [19] stated that the decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 is no longer binding. The Court held at [20] that its jurisdiction is limited only to “jurisdictional errors” which includes:
… where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of ‘refugee’.
Conclusions and findings
When the matter came on for hearing the applicant, through his Counsel, sought to amend the application to include a claim “that the protection visa application filed on the 11 October 2000 is an invalid application”, in addition to the grounds relied upon in the amended application filed on 10 June 2003. In support of his contention I was referred to various responses to questions contained in the pro forma protection visa application filed on 11 October 2000 (Court Book page 1 (“CB 1”)). In particular attention was drawn to the response to question 36 at CB 6 which concluded “details are to be sent shortly”. Reference was made to the response to question 37 at CB 7, which commenced with the words “I will respond in more detail later, but my family…”. I was also referred to the responses to questions 38, 39 and 40 at CB 8 and 9, and at CB 20 where the Migration Agent said “we’ll send in a detailed statement later”.
In summary, what was submitted by the applicant was that those questions had not been answered and what the Tribunal considered on the day it heard the matter was an invalid application. It was further submitted that this was clearly so when considered in the context of section 45 of the Migration Act, regulation 2.07(3). What the respondent says however, is that the applicant clearly did answer the questions and so far as the applicant choose to say that, “I will send some further details” and chose, in relation to question 40, to repeat some of what was said in question 38. None of that means that the applicant did not answer the questions.
Regulation 2.07(3) requires that: “an applicant must complete an approved form in accordance with the directions on it”. The approved form in this case was the Application for a Protection Visa and at the top of CB 6, it says: “In order for your application to be considered valid, it is imperative that you include your reasons for claiming refugee status in your application at time of lodgement.” The applicant then at the end of his answer to question 36 says, “my fear of persecution arises from grounds of my deemed political activities in helping a possible member of the Kashmiri Muslim militants. Details to be sent shortly.” I am satisfied that there is no doubt what his fear of persecution is, and that this was in fact set out in the application.
In James v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1383 (8 November 2002), the applicant applied for a protection visa. The application form contained brief responses and through the Migration Agent the applicant advises details of the claim would be provided later. The application was rejected and the applicant sought review on the basis that the application was not complete and therefore not “a valid application” as required by the Migration Act. Weinberg J stated: “The information contained in the application form made it sufficiently clear to me that it’s a valid application.” At [31], His Honour said:
The RRT in the present proceeding noted the existence of this line of authority. However, it considered that the applicant’s case differed significantly from the three cases set out above. Whereas none of the applicants in those cases provided answers to any of the critical questions asked, the applicant in the present case had answered those questions, albeit in a manner which might be said to lack detail.
In Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486, Heerey J held at [13]:
The applicant did answer all the questions on the form. I think a fair reading of his answers indicates that he was making a claim that he feared persecution on the ground of political opinion. There was therefore a valid application for a protection visa which he was able to supplement by further information.
As I already indicated, there is no doubt in the present instance that the applicant feared persecution because of his deemed political activities with respect to helping a possible member of the Kashmiri Muslim militants. This information makes the application, in my view, sufficiently clear to render it a valid application.
The second claim of the applicant is that the Tribunal was in breach of section 430 of the Migration Act in that it failed to set out reasons for the finding at CB 97 that:
I do not consider that there is anything about the applicant and his circumstances which could lead him to be suspected of involvement with the limited Sikh militant movement as exists today and so come to the adverse attention of the authorities for reason of his religion and associated political opinion.
It is clear to me that the Tribunal did not fail to have regard to any considerations in relation to the possibility that the applicant might be suspected of involvement with the Sikh militant movement, nor did it fail to give reasons for that finding. The Tribunal made the following detailed findings at CB 96-97:
I accept that the applicant is a Sikh and that he is from Patiala in Punjab. I note that the applicant does not fear persecution as a Sikh but have nevertheless looked at the current circumstances of Sikhs given the long conflict which occurred in the 1980s and early 1990s and the terrible things which were done to Sikhs suspected of association with militancy or terrorism. As is apparent from the above account of information about the present situation, that conflict has now been over for many years. I do not consider that there is anything about the applicant and his circumstances which could lead him to be suspected of involvement with the limited Sikh militant movement as exists today and so come to the adverse attention of the authorities for reason of his religion and associated political opinion.
I have considered the applicant’s claim to fear persecution as a suspected supporter or associate of a Kashmiri militant. There are aspects of the applicant’s claims which have led me to doubt that the applicant was so suspected. I consider that had the police wanted to find the applicant so he could help them locate Ahlum, which the applicant submitted at the hearing was the reason they were after him, then they could have done so. He said that in the year which followed his father’s arrest, the police came looking for him (the applicant) very frequently, sometimes more than once a day, sometimes every day and other times every few days. He said that he was in hiding with relatives for the year before he came to Australia but I consider that the police could have pressed his mother and sister to establish where he was and locate him. I found his account of having gone to India in 2000 allegedly to find out about the fate of his father only to find police posted outside his family’s house necessitating his return to Delhi very unconvincing. Had there previously been such sustained interest in him and his family, it is very difficult to see why he would have thought it safe to return to India. I am not satisfied that his family was harassed by the police, including their frequent visits searching for the applicant, as the applicant claims occurred.
In making the above findings, I am satisfied that the Tribunal complied with section 430 of the Migration Act. All that section 430 requires is that the Tribunal set out the findings that it has in fact made.
The applicant’s contentions also assert that the Tribunal did not set out the reasons for the findings that it was not satisfied that the applicant had a friend called Ahlum. This is simply not consistent with what the Tribunal said at CB 97:
The applicant claims that his friend Ahlum and his family had links to Kashmiri extremists. I note information from the Department of Foreign Affairs and Trade which indicates that in 1995 there were virtually no reports of such militants operating outside Jammu and Kashmir. This does not mean that such militants were never elsewhere but it does suggest a negligible presence. Independent information, including the material provided by the applicant at the time of the hearing, confirms that the Punjabi police and other security authorities which operated in Punjab perpetrated terrible human rights abuses in their suppression of the Sikh militant movement and that there are incidents of police abuse still occurring. Such actions now occur in Jammu and Kashmir against suspected Kashmiri extremists. Against this background and my finding that the applicant was not sought by the police as he claimed, I am unable to be satisfied that his father was taken away by the police in 1997 when they came to arrest Ahlum and that he was never seen again or that his brother’s disappearance in 1999 was connected to this event.
What the Tribunal was doing was clearly making findings of fact having rejected all the major factual claims made by the applicant. The findings were findings of fact and related closely to the applicant’s credibility. In NACV v Minister for Immigration & Multicultural Affairs[2002] FCA 411 (3 April 2002), Conti J said at [2]:
It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility. So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal.
And as McHugh J said in Re Minister for Immigration & Multicultural Affairs;Ex parte Durairajasingham (2000) 168 ALR 407 at [67]:
This was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
In my view there is no basis for the contention that the Tribunal failed to comply with section 430, but in any event, a failure to do so would not give rise to jurisdictional error, rather it would provide for relief by way of mandamus directed to the Tribunal to provide proper reasons. Indeed the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (30 June 2000) at [22] said:
Durairajasingham decides that compliance with s. 430 does not go to the jurisdiction of the RRT, as s. 430 presupposes that a decision has already been made. However, that is not determinative of the issue of construction of s. 476(1)(a), since Abebe v Commonwealth (1999) 162 ALR 1 at [21] recognises that, whilst in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated, in other respects (and footnote 4 refers to s. 476(1)(a) as an example) the jurisdiction of the Federal Court is arguably wider than that of the High Court under s. 75(v) of the Constitution. Section 476(1)(b) suggests that s. 476(1)(a) is not confined to matters which go to jurisdiction.
The final contention of the applicant is that there was a breach of section 424A of the Migration Act. There is no basis for that claim. The Tribunal’s decision was, as I have indicated, based upon its findings in relation to the applicant’s credibility and not upon information the Tribunal was obliged to provide to the applicant pursuant to section 424A.
It follows that all the circumstances there was no reviewable error disclosed, and in particular there has been no jurisdictional error. The application should be dismissed with costs, which the parties have already agreed should be fixed in the sum of $5,500.00. I make orders accordingly.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 14 September 2004
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