M47 of 2004 v Minister for Immigration
[2005] FMCA 1414
•5 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M47 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1414 |
| MIGRATION – Protection Visa – judicial review – whether Applicant husband an applicant – whether s.424A(3) of the Migration Act applies. |
| Migration Act 1958, s.424A(1), 424A(3)(b), 441A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 (2005) 215 ALR 162 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 |
| Applicant: | APPLICANT M47 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1344 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 20 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Mr. M. Felman |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1344 of 2004
| APPLICANT M47 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Applying the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 (2005) 215 ALR 162 (SAAP), the Refugee Review Tribunal is added as a Second Respondent to this application nunc pro tunc. The Applicant who is unrepresented appears with the assistance of an interpreter and seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 January 2004.
The Tribunal had affirmed a decision of the delegate of the First Respondent not to grant to the Applicants a protection visa. The Tribunal conducted a hearing on 5 December 2003 where oral evidence was given by the Applicant and the Applicant's husband. It is noted that the application in this matter was made for review of the delegate's decision on 31 May 2002.
The Applicant filed the present application in this Court on 9 February 2005, though has relied upon a document described as an ‘amended application’ filed 10 February 2005 together with contentions of fact and law filed the same day.
It should be noted at the outset that towards the end of this hearing the Applicant had sought further time in which to make other submissions. However, the Court refused to adjourn the matter on the basis that it was not satisfied that it would be appropriate to do so. In part for reasons which will become evident, the Court concluded that it would not be of any assistance to permit the matter to be further adjourned.
The amended application filed on 10 February 2005 followed orders from a Registrar on 15 December 2004. This matter had originally commenced in the High Court of Australia and had been remitted by that Court to the Federal Court which in turn transferred it to this Court by order on 14 October 2004. The hearing date initially of 8 August 2005 had been fixed by a Registrar of this Court at a hearing on
15 December 2004. It was as a result of that hearing that the Applicant filed the amended application to which reference has already been made.
When the matter came before this Court on 8 August 2005, it was adjourned to 20 September 2005 on the basis that the Respondent had only recently filed and served the contentions of fact and law to be relied upon. I granted the adjournment on that occasion as I considered it appropriate to give the Applicant an adequate opportunity to consider the detailed submissions made in the contentions of the Respondent.
When the Applicant indicated a desire to further adjourn this hearing at the end of the submissions, I formed the view that it was not appropriate to do so and nor was it in the interests of justice to do so as the Applicant had managed to state in clear terms the matters of concern to her arising out of the Tribunal decision, albeit that she had difficulty in common with many unrepresented Applicant's in this jurisdiction in dealing with the issue of jurisdictional error.
Although she appeared to be nervous and anxious, I did not form the view that she was incapable of presenting her arguments, despite the inadequacy of those arguments in relation to dealing with issues of jurisdictional error.
By way of further background, it is noted that the Applicant is a female citizen who arrived in Australia on a visitor’s visa on 16 October 2001 with her husband who is a dependent Applicant to this proceeding. The Applicant's claims have been accurately set out in the contentions of the Respondent in paragraphs 8 to 11 as follows:
“8. The applicant claims that she was a member of the Kibris Kadir Birligi (Cypriot Women’s Group) (‘KKB’), a group that supports the unification of Turkish and Greek Cyprus. The applicant alleges that the KKB is a secret group and that she attended meetings of the KKB every week or two weeks. These meetings were organised by telephone, were attended by 150-200 people and held in people’s homes. In addition to the meetings, the KKB had people who would go door knocking to promote the organisation and distribute publications in people’s letterboxes.
9. The applicant alleges that from some time before 1998, she was persecuted and threatened as a result of her membership with KKB and therefore unable to live her life in a safe way. The applicant alleges that she received abusive and threatening phone calls from people who favoured the government of the time, and from 2000 she also received death threats and was virtually a prisoner in her own home. The applicant also claims that the meetings of the KKB were often broke up by the government. In October 2001, the applicant alleges, she could not stand the threats any longer and she spent 15 days living at another place. The applicant claims that her family were also constantly terrorised and that her daughter moved to England as a result. Further, her husband had lost his job because he had voted against the government.
10. The applicant claims that she made numerous complaints to the police but they merely dismissed the threats and failed to investigate them. The applicant believed the police were unable to protect her and her family and had never arrested anyone because of her complaints. They had merely advised her to quit the KKB. The applicant alleges that this indicated complicity by the police with the people threatening her and had the effect of virtually encouraging their behaviour. The applicant claims that the Cyprus government tries to hide the existence of the KKB, which is part of a government strategy to ensure the group disappears from the public domain. The applicant also alleges that on one occasion, after an earthquake, she went to see the President of Cyprus to complain about the lack of aid but was not allowed into his premises.
11. The applicant claims that if she returns to Cyprus she would continue to face persecution and death threats from members of the community because of her involvement with the KKB. The applicant also fears retaliation from the Turkish regime itself.”
The Amended Application
The amended application asserts that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material. Particulars provided in the amended application are as follows:
“I have read the decision of the RRT and I say the tribunal is wrong. I say there is a real chance of persecution on account of the fact that if I were to return to TRNC, I would continue to face persecution and death threats from members of the community because of my involvement with the KKB. That because of my support for the reunification of Cyprus, there is the possibility of an escalation in the violence that I have already faced. That not only is there a lack of state protection available to me but the police have failed to investigate the threats made against me. I say this inaction indicates some complicity in these actions and I fear retaliation from the Turkish regime itself, because of my support for the KKB. I say the tribunal has not taken these considerations into account when deciding my case.”
The Tribunal's Decision
The Tribunal accepted that the Applicant was a national of Cyprus despite the fact that she had a Turkish passport. It is clear though in its reasons that the Tribunal expressed considerable concern regarding the Applicant's credibility. It specifically states the following at page 67 of the court book:
“Her evidence was vague, confused and contradictory in relation to many aspects of her claims.”
I have considered the findings and reasons of the Tribunal and I am satisfied that an accurate summary of those findings in relation to the Applicant's credibility has been set out in the following passages from the Respondent's contentions of fact and law.
“12.1. The applicant had difficulty explaining what the KKB was, particularly whether it was a welfare group, political party or whether it campaigned in elections. She could not describe its ideologies, its policies or what other political groups it supported whilst waiting for its registration. She could not explain in what forum her husband had voted for the KKB (CB 67).
12.2. The applicant had difficulty in explaining the activities of the KKB beyond that it advocated “peace with the Greeks”, particularly, how it was going to achieve peace, the nature of its publications, why it operated in secret, what was discussed in the meetings. She could not explain how a secret organisation could go door knocking. The applicant was unaware of the Greek Cypriot proposal to join the European Union yet when raised by the Tribunal, she claimed that it was discussed at the KKB meetings (CB 67).
12.3. There were fundamental contradictions between the applicant’s evidence and that of her husband. Her husband never claimed that he had lost his job because he had voted for the KKB and while the applicant claimed that they supported the political party CTP, the applicant claimed that they supported the Democratic Party. Further, while the applicant claimed that she was unemployed, the husband claimed that the applicant had worked for the KKB as a cleaner. Until their arrival in Australia, the husband was also unaware of the applicant’s political activities, or any problems she had with the KKB (CB 68). This contradicted the applicant’s claims that her family were constantly harassed and would not live with her.
12.4. Despite the applicant receiving threats for over four years, she never reported them to the KKB itself. Further, the applicant’s evidence regarding whether she went to the police was contradictory and vague (CB 68).
12.5. When it was put to the applicant that she was someone without a political profile who was involved only in a minor way with a minor organisation, she claimed that she was in fact targeted because she had stopped voting for another political party. When asked which political party this was, she replied that it was the Democratic Party, which was not in existence at the time that she had voted for them (CB 68).
12.6. The applicant could not explain why, if she was being threatened and feared for her life, she waited four years before fleeing Cyprus and why she did not claim refugee status when she had briefly visited Australia in 1999, after the alleged persecution had begun (CB 69).”
It is relevant to note that the Tribunal found that the KKB exists as a group and that the Applicant had worked as a cleaner for it, however, it did not accept the KKB is a political group, nor that it has a political agenda.
It made findings that the meetings had not been disrupted by government forces and found the Applicant had not been threatened for any reason in Cyprus and it did not accept that the Applicant's family had been constantly terrorised or that her daughter had moved to England as a result.
Whilst it accepted the Applicant's claim that she had been refused entry to the President's premises, it held that treatment was not of sufficient seriousness to amount to persecution for a convention reason (see court book page 69). It is relevant to set out the following extract from the Tribunal's decision which appears at page 69-70 of the court book, where the Tribunal states:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.
No specific Convention claims were made by or on behalf of the applicant husband. The fate of his application therefore depends on the outcome of the first named applicant's application. As the first named applicant cannot be granted a protection visa, it follows that the applicant husband cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted a protection visa.”
The Issues
The Applicant relied upon the amended application and contentions which effectively repeated the concerns expressed by the Applicant in relation to the Tribunal decision. In her oral submissions before the Court the Applicant asserted that she still believed that the decision made by the Tribunal was wrong.
The Applicant further explained that she tried her best to explain everything to the Tribunal and indicated that at the time of the Tribunal hearing she was confused, and in particular found it difficult to respond to the questions of the Tribunal. The Applicant otherwise sought to explain other factual matters which the Court does not need to recite in this judgment.
The Respondent submitted that essentially the Tribunal's decision involved rejection of the Applicant's credibility and in particular made reference to the vague, confused and contradictory material before the Tribunal. It was submitted that the Tribunal has not made any jurisdictional error.
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).
It was submitted by the Respondent that there is no jurisdictional error evidenced in the Tribunal decision. It was argued that a finding on credibility issues was in this instance open to the Tribunal on the material before it and that finding does not provide a basis upon which the Court can conclude there has been an error of law (see NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 at 9).
It was argued in the present case that there is nothing in the Applicant's application or contentions to support the assertion that the Tribunal asked the wrong question, identified the wrong issue, failed to consider a relevant consideration or took into account an irrelevant consideration.
In my view it is clear from the summary of findings by the Tribunal that there are indeed a series of conclusions reached by the Tribunal reasonably open to it whereby ultimately it makes adverse findings in relation to the Applicant's credibility. Those findings, free of jurisdictional error, are to a large extent incapable of supporting any finding by this Court that there has been an error of law.
The Respondent as a model litigant has properly drawn the Court's attention, however, to a further factor which requires consideration following the decision of the High Court in SAAP. The Court is required to consider whether s.424A(1) of the Migration Act 1958 (“the Act”) applies to the husband's evidence.
The Respondent properly accepted that the Tribunal in this instance failed to put to the Applicant information provided during the hearing by the Applicant's husband in the manner specified by s.441A of the Act and that therefore prima facie there would appear to be a breach of s.424A(1). It was submitted, however, that in this instance the application can be distinguished from SAAP on the grounds that the Applicant's husband was an applicant for the purposes of s.424A(3)(b) of the Act.
In SAAP the witness giving evidence, whilst related to the Applicant, was not in fact an Applicant for a protection visa. Accordingly in SAAP the Court was not required to examine s.424(3)(b). In this instance the Respondent further relied upon and I accept as a relevant authority the decision of Marshall J in MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1263 where his Honour states the following:
“24 As a consequence of a matter raised on behalf the first respondent as a model litigant, the Court has also considered the possible impact on this appeal of the fact that the RRT gave no written notice to the first appellant about its intention to rely upon adverse evidence of the second appellant. Whatever other answers there may be to any submissions, if put, in reliance of that aspect of SAAP, s.424A(3)(b) of the Migration Act 1958 (Cth) operates to excuse the RRT from giving any written notice in the circumstances. That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1 at [58].”
Applying that paragraph and accepting the submissions made for and on behalf of the Respondent, I find that the Applicant's husband was indeed an Applicant before the Refugee Review Tribunal (“the RRT”). Accordingly I am satisfied that s.424A(3)(b) of the Act operates to excuse the RRT from giving any written notice of the information of the husband to the primary Applicant. In the alternative, I am further satisfied that the submissions by the Respondent in relation to the other findings by the Tribunal providing a sufficient basis upon which the decision could not be set aside apply in the present case.
I further apply and rely upon the principles set out in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965 where North J noted that the Tribunal in that case had rejected an Applicant's claim on four separate bases. His Honour accepted that in relation to one of these bases, s.424A may not have been complied with, though despite that fact his Honour could not accept a submission that the Tribunal's decision must be set aside.
“33 As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”
It is clear in the present case that at least two of the significant findings against the applicant could not be findings where the evidence of the husband was particularly relevant; namely the following:
·The implausibility that someone in the Applicant's position would be regarded as somehow a threat to a political party in power; and
·The fact that the Applicant did not flee earlier and did not apply for Refugee status in 1999.
In my view, applying the relevant authorities relied upon by the Respondent and accepting the submissions made for and on behalf of the Respondent, I am satisfied in the present case that there has been no jurisdictional error. Given that the Applicant's husband is properly regarded as an Applicant, I am further satisfied that s.424A(3)(b) of the Act applies.
In the event that I am in error in relation to those matters, I further find that in relation to the failure to comply with s.424A I further apply the decision of North J in VBAP and in this instance find that there were other grounds upon which the Tribunal could properly reach its decision, and any contravention of s.424A should not be a matter which determines the outcome of this application for the reasons stated. Accordingly it follows the application should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 5 October 2005
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