MZJAK v Minister for Immigration
[2004] FMCA 358
•25 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZJAK v MINISTER FOR IMMIGRATION | [2004] FMCA 358 |
| MIGRATION – Application for protection visa – claim of persecution by insurgent group Naxalites – whether Tribunal should have considered the possibility of persecution by another group Green Tigers – claim of persecution by Green Tigers not made by applicant – whether failure to consider the possibility of persecution by Green Tigers was a failure to consider a relevant matter amounting to jurisdictional error. |
Migration Act1958(Cth), s.474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129
Paramananthan v Minister for Immigration and Multicultural Affairs [1998] 94 FCR 28
Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113
| Applicant: | MZJAK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1064 of 2002 |
| Delivered on: | 25 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 5 August 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr. Yusuf Zaman (pro bono) |
| Counsel for the Respondent: | Mr. Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1064 of 2002
| MZJAK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on 16 June 2000 on a student visa. He is a citizen of India. On 28 April 2001 the applicant applied for a protection visa. He claimed to be a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees and 1967 protocol relating to the Status of Refugees.
He claimed that while working for a real estate company in India, he was detained and beaten by persons whom he later identified as "Naxalites". He claimed that he reported the incident to the police and identified some suspects. He was called to give evidence at court, but the accused were released by the court. He claimed that there were threats and intrusions thereafter. He claimed that the people were Naxalites and that they bribed the police and courts. He claimed that the police twisted the allegations he made against the Naxalites into allegations against him and that the police began mounting a case against him for illegal trading although no charges were laid. He claimed that he feared persecution if he returned to India.
The Tribunal did not accept his claim and came to the conclusion that the applicant had “entirely fabricated his claims of any problems at the hands of Naxalites and of any subsequent problems with the police or other Indian societies”. The Tribunal found that “his claim that it is not safe to return to India even now, as allegedly advised by his parents, and that he is wanted by the police due to pending charges against him or due to any alleged failure to attend court, are merely endeavours to bolster other false claims of refugee status”.
Section 474 of the Migration Act1958 (Cth) contains a privative clause. It provides that a decision of an administrative character made under the Migration Act is final and conclusive, is not to be challenged in any Court and is not subject to prohibition mandamus injunction declaration or certiorari. The High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 has determined that s.474, on its proper construction, does not apply to jurisdictional errors.
In Plaintiff S157/2000, breach of the rules of natural justice was held as a jurisdictional error. What constituted jurisdictional error other than denial of procedural fairness, was not decided in that case because it was unnecessary to do so.
In NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499, a decision of Hill J in an appeal from the Federal Magistrates Court, and SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129, a decision of the Full Court of the Federal Court in two appeals from single judges of the Federal Court, it has been held that the principles of interpretation laid down by the High Court in Plaintiff S157 are of a wider application.
In SDAV, the Court said at 35:
The nature of jurisdictional error which will enliven the court's power under s 39B of the Judiciary Act was discussed in Craig v The State of South Australia (1995) 184 CLR 163 (`Craig') at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (`Yusuf') where McHugh, Gummow and Hayne JJ said at 351:
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise that in accordance with the law.
In its reasons, the Tribunal said this:
The applicant claims that one occasion when he showed some people through an apartment in the course of his usual work, they refused to complete the necessary paperwork required in order to rent the apartment, instead demanding that he just hand over the keys without reference to his boss. He claims that when he refused to accede to their demands he was locked in a room for a few hours and beaten. He claims that he saw a range of illegal goods and that he observed his captors undertaking various transactions, probably involving drugs or guns. He claims that when his captors eventually released him they threatened him with death if he did not more willingly cooperate with them in the future.
He said that he did not initially realise his captors were Naxalites, but some friends of his parents alerted him to that fact when he told them his captors were dealing in guns. He said that he also recalled they were dressed like people who had come from a forest area rather than common criminals whose clothing is sharper.
The applicant comes from Andhra Pradesh. It is one of the States where Naxalites are active. They are a group opposed to government. It is a movement which has a history of violence.
The jurisdictional error alleged is that the Tribunal ignored relevant material. The relevant material is a paragraph in the US Department of State Country Reports on Human Rights Practices – 2000 for India. It is referred to in the decision of the delegate of the Minister who refused the application as part of the evidence before the delegate. In its reasons the Tribunal said it had regard to material on the Departmental files, including that referred to in the delegates decision.
The report covers human rights across the whole of India. The paragraph said to be relevant reads:
The Disturbed Areas Act has been in force in a number of districts in Andhra Pradesh for over 3 years. Human rights groups allege that security forces have been able to operate with virtual impunity in parts of Andhra Pradesh under the act. They further allege that Andhra Pradesh police officers train and provide weapons to an armed vigilante group known as the "Green Tigers," whose mission is to combat Naxalite groups in the state. Little is known about the size, composition, or activities of this group
It was submitted that the group which held the applicant captive could have been from the Green Tigers. Various arguments were advanced to show that the applicant's story was consistent with his captors being Green Tigers, more so than if they were Naxalites. It was argued that the fact that the applicant's captors were arrested and subsequently released by the police could lead to an inference that it was because they were Green Tigers.
It was submitted that the Tribunal had ignored relevant material or asked itself the wrong question and that this amounted to jurisdictional error. It was submitted that it should have considered whether the applicant's captors were Green Tigers. The submission depends upon there being any obligation on the Tribunal to consider whether the Green Tigers might have been the applicant's captors. The applicant did not put that forward. He said that they were Naxalites.
In Paramananthan v Minister for Immigration and Multicultural Affairs (1998] 94 FCR 28, (Full Court) Merkel J. said at 63:
Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J, Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Branson J, 26 October 1998) at 2 and Saliba v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 5 November 1998) at 16-17. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particularly case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the "merits of the case".
More recently, in Giraldo v Minister for Immigration and Multicultural Affairs [2001]FCA 113 Sackville J. said at [59]:
59. I do not think that the first ground relied on by Mr Markus is a basis for denying relief to the applicant. In Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, I said this:
"The general principle is that a tribunal is not obliged to make out an applicant's case. However, there are circumstances where the tribunal may be obliged to undertake further factual inquiries, even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applicant's claim that he or she satisfies the Convention on a particular basis, the RRT may be required to consider the issue. Particularly is this so where the RRT accepts the substance of the applicant's account. I agree with the comments recently made by Branson J in Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No 134 of 1998, 26 October 1998), at 2:
`The respondent contends that the applicant did not articulate before the RRT a conscientious objection to military training and service. It is true that he did not expressly do so, and a decision-maker is not obliged to make a case for an applicant (Luu v Renevier). However, in my view, in appropriate cases, a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant. This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT'."
See also Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, per Merkel J; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, at 388, per Merkel J.
The Country Reports on Human Rights Practices- 2000 describes the Naxalites as an insurgent group. It refers to "clashes between police members and Naxalite Maoist Revolutionaries of the People's War Group (PWG) ". The Green Tigers are described as an armed vigilante group against the Naxalites. The applicant does not claim he has any connection with Naxalites. On the contrary, he claims they detained him and threatened him. He claims that this occurred while he was going about his ordinary work with a real estate company. He claimed this was because he would not cooperate with the group’s wish to use premises for which he had the keys and subsequently he had seen them with a range of illegal goods.
The material which was submitted indicated that it might have been the Green Tigers that the police arrested as suspects and then called the applicant to Court to give evidence but that the accused were released by the Court. The applicant claimed that Naxalites bribed the police and courts.
The applicant put forward a case alleging persecution by Naxalites. He put before the Tribunal evidence of his reason for saying that they were Naxalites. To come within the Convention definition of persecution the applicant had to do more than establish violence by a particular group. He had to have a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. His case was that he feared persecution by the police. His case was that he had been imprisoned by Naxalites which he reported to the police, the Naxalites bribed the police and the police turned against him. What his case would be if it were the Green Tigers who had imprisoned him is not apparent. It is particularly difficult to see what the Convention reason for persecution would be. It cannot be the case that the Tribunal is required to inquire into circumstances where it is difficult to see what the applicant's case could be on essential point when the applicant has not put that case. This is not one of those cases where the Tribunal should, on its own initiative, have looked at an alternative case.
Independent of the Tribunal's findings about violence by Naxalites, the Tribunal found that the applicant would be able to avail himself of the protection of the State. The Tribunal said:
In the light of aforementioned information the Tribunal finds that if the applicant were to have faced the harm he claims, he would be able to avail himself of the protection of the State. The claim that the authorities would not only fail to protect the applicant but would bring false charges against him in response to him trying to help bring Naxalites to justice is utterly far-fetched, and the tribunal rejects it. In reaching that conclusion the Tribunal also gives weight to the applicant's capacity to depart India legally on his own passport, thereby indicating that he was not wanted by the authorities in relation to any matter.
Even if the Tribunal should have considered whether the Green Tigers were involved, failure to do so is not a jurisdictional error in the circumstances. The applicant's claim was that his detention and threats took place in circumstances which gave rise to a fear by him of further harm so that he came within the Convention definition of persecution. The issue which the Tribunal had to determine was whether the events alleged by the applicant took place. It decided that they did not. It did not believe the applicant. If the Tribunal did overlook the Green Tigers in its considerations, it was at most an error in the fact finding process. It did not affect the exercise of power so as to be a jurisdictional error.
No basis for relief is shown.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 25 June 2004
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