M27 of 2004 v Minister for Immigration
[2005] FMCA 1220
•26 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M27 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1220 |
| MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdiction error. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (2 February 2004) |
| Applicant: | APPLICANT M27 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1068 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant be granted leave to add as a Second Respondent nunc pro tunc the ‘Refugee Review Tribunal’.
The application as amended be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $5,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1068 of 2004
| APPLICANT M27 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant relies upon an amended application filed on 3 February 2005. In that amended application the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 31 December 2003. In its decision the RRT had affirmed a decision of a delegate of the first respondent to refuse the grant of a protection visa. The applicant is a Sri Lankan citizen who had entered Australia on 24 October 2002. On 7 November 2002 she lodged with the department an application for a protection visa claiming that on the basis of her political opinion as a supporter of the Janatha Vimukthi Peramuna party (JVP) she faced a real chance of persecution at the hands of political opponents. A delegate of the respondent refused the grant of the protection visa in a decision dated 25 March 2003. On 14 April 2003 the applicant applied to the Refugee Review Tribunal for review of that delegate's decision. A hearing was conducted on 15 December 2003. The applicant gave evidence and was then represented.
Before this court when the matter commenced earlier today, it was clear the applicant had some difficulty understanding the proceedings, and arrangements were made for an interpreter to attend. The applicant otherwise appears unrepresented. I am satisfied that the applicant with the assistance of the interpreter has had the opportunity to consider the respondent's contentions of fact and law which were only provided to the applicant this day, together with a supplementary court book which contains a statement by the applicant in support of the visa application and an extract of her passport.
It is perhaps not surprising that the applicant who is unrepresented before this court seeks to argue that the RRT in considering her claims did not take the claims seriously. She has also expressed concern about the use made of country information in assessing her credibility and otherwise expressed concern that at least from her perspective she felt that the RRT had made an adverse decision and essentially had decided the case against her before the hearing had commenced. I take that to be an assertion of bias.
In the amended application, however, in claiming jurisdictional error, the particulars relied upon by the applicant include a reference to a suggestion that the RRT was wrong when it did not accept that there were threatening letters and telephone calls or that vandalism of her salon occurred, and further wrong that in concluding that if the applicant were to support the JVP in some public way upon return, there is a chance that she would - particularly at election times - be caught up in election-related violence. Further, it is asserted that the tribunal is "wrong" when it said there is no credible evidence that the applicant had come to any such harm in the past because of her claimed support for the JVP. She asserts that she provided the tribunal with details of the harm that she suffered.
To understand the amended application, it is useful to note the claims made by the applicant before the RRT, which have been adequately set out in the respondent's contentions filed in this court. Those claims include the following.
The applicant first became involved with the JVP in 1992. From 1994 onwards the applicant increased her involvement with the JVP, attending meetings and campaigning for the party. From the early days of her involvement with the JVP until 2001, the applicant was verbally harassed by people whom she thought were political opponents. However, she did not take this harassment seriously. From 2001 until her departure to Australia, the applicant received approximately 15 anonymous letters and threatening telephone calls in which she was warned that if she did not cease her political activity, she would be abducted, raped and killed. During this period of time a group of thugs came to the house of the applicant's parents and threatened to kill the applicant and her family if she did not quit her political activity. The applicant further claimed that in 2001 her business premises were vandalised. In March 2002 she claimed the premises were damaged by fire, and although police had informed the applicant that they would investigate the incidents, they had done nothing. Since arriving in Australia the applicant's parents had received telephone calls from people identifying themselves as friends of the applicant and asking about her whereabouts.
The RRT in considering these claims made a number of findings which could properly be described as adverse credibility findings against the applicant. It is perhaps useful to set out by way of example an extract of the Findings and Reasons (Court Book page 70) from the RRT's decision which in my view illustrate, at least in part, those adverse findings made against the applicant in relation to claims which were clearly of significance before the RRT. The RRT states the following:
At the heart of the applicant's claims is her association with the JVP. She claims to have started to go to meetings in 1992 when she would have been 16, and two years later she became actively involved. I do not consider that the evidence indicates that the applicant's involvement was as she claimed. Her understanding of the JVP's ideology is very superficial. I understand that people can feel deeply committed to a cause or an organisation without knowing very much about it, but the applicant claimed to have had a long and active involvement and to have canvassed for support from house to house, and in this context it is notable that she was unable to talk more readily about the distinctive features of the JVP's political agenda, particularly in light of the parties strong ideological foundations. As well, her recollection of recent elections was limited. She did not appear to recall the general election in 2000 and recall the JVP's role in the downfall of the PA government which won that election, only when I told her of it. I do not accept that the applicant had the involvement with the JVP that she claimed but accept that she may vote for the party and believe that it is the best party in Sri Lanka.
The applicant's evidence about the adverse consequences of her involvement with the JVP was that until the UNP election victory in December 2001, it appears for some years she was subjected to verbal harassment and some rude and nasty remarks including by people who would drive by when she was walking. The timing of what occurred was not clear from her protection visa application, but her evidence at the hearing was that it was not until after the December 2001 election that there started to be threatening calls and letters. She said that she believed that the verbal harassment she claimed occurred because of her involvement with the JVP and that she did not take it seriously. It seemed to me to be somewhat speculative that it was the applicant's association with the JVP that was the reason for the harassment she claims occurred. As I said at the hearing, there are many other reasons why men say rude and nasty things to young women, but even if the motivation was because of the applicant's political views, it is clear that what was done was far short of conduct which could be regarded as persecutory. Her own evidence did not indicate that it involved serious harm.
After those extracts, the tribunal goes on to consider in some detail the specific claims made by the applicant who, as I have noted earlier, was represented at the tribunal hearing by a migration agent. It is perhaps not surprising, having regard to the two paragraphs referred to above, that the applicant perhaps was concerned in relation to the manner in which the hearing was conducted, though I accept as was submitted by the respondent that during the course of the hearing the tribunal is perfectly entitled to put to the applicant alternative explanations for the conduct which was the subject of the complaint and said to arise from her association with JVP. Nevertheless, the extract to which I have referred may well at least support a perception of the applicant that the tribunal did not have due regard to her claim and reached a decision which clearly the applicant regards as wrong.
On reading the reasons of the tribunal as a whole, however, it is clear to me that it has addressed the claims as advanced for and on behalf of the applicant.
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).
I otherwise note authorities referred to by the respondent in submissions before this court, and in particular note and accept the submission as a matter of law that it is impermissible for an applicant to simply challenge the finding of facts, including credibility findings, and that credibility is a matter for the tribunal par excellence (See Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
On my reading of the RRT's reasons and findings, whilst it is clear that adverse credibility findings have been made, I cannot see any error of law revealed in the reasoning process of the RRT in reaching the conclusions it no doubt reached after considering the claim, and note that those conclusions are conclusions now challenged by the applicant. Nevertheless, the findings were open to the RRT on the material before it and it highlighted in its reasons difficulties it found with the applicant's evidence and clearly rejected the applicant's claims in relation to key issues concerning threats and property damage. It otherwise relied upon country information, and I accept that as a matter of law it is able to do so and can use the information in assessing credit. See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (2 February 2004).
It is clear to me that on a proper reading of the RRT's decision it has otherwise made findings in this instance which in my view do not reveal any jurisdictional error. In the circumstances, though noting the challenge to the findings of fact made by the applicant in the amended application and in her contentions, and indeed before this court, I am satisfied that there is no basis upon which this court can find any error and indeed was not able to find any jurisdictional error. It follows, therefore, that the application as amended should be dismissed.
Although not specifically referred to in the contentions, it appeared to the court that the applicant had sought to assert that the tribunal had made a decision about the application prior to the hearing and to that extent had demonstrated bias. There is nothing in the material as a matter of law which would justify this court making a finding of bias in this instance and hence reliance upon that as a ground for this application should fail.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 July 2005
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