MZQAV v Minister for Immigration
[2004] FMCA 803
•19 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZQAV v MINISTER FOR IMMIGRATION | [2004] FMCA 803 |
| MIGRATION – Review of decision of Refugee Review Tribunal – hearing de novo – typographical error – findings as to credibility – no real chance of persecution for a convention reason – Migration Act 1958 (Cth),ss.48A;65;414;415;424A;441A – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko -Wallsend Ltd (1986) 162 CLR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Abebe v Commonwealth of Australia (1999) 197 CLR 510
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
Applicant NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102
| Applicant: | MZQAV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 770 of 2003 |
| Delivered on: | 19 October 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 14 October 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mrs L.C. Bird |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6085.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 770 of 2003
| MZQAV |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Proceedings arise out of an application filed by the applicant on 18 July 2003. That application was amended by amended application filed 13 April 2004. The application is pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.414, 424A, 475A, 476, 477, 478 and 479 of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks writs of prohibition and certiorari and a declaration in relation to a decision of the Refugee Review Tribunal (RRT) made 6 June 2003 and handed down on 27 June 2003.
History
The applicant was born on 6 September 1964 in Colombo in Sri Lanka. He is a Singhalese Buddhist. On 13 June 1996 he arrived in Australia on a short stay business visa. He travelled on a passport issued in his own name.
On 30 June 1997 the applicant lodged an applicant for a Protection (Class XA) visa. A delegate of the Minister refused that application on 17 July 1997.
The applicant made application for review on 18 August 1997, although no claims were made by him in that initial application, but rather made in written review submissions and sworn oral evidence.
On 17 September 1999 the RRT handed down its decision made 1 September 1999 affirming the delegate's decision of 17 July 1997 not to grant a protection visa to the applicant.
On 12 September 2001 the applicant lodged a further application for a protection visa claiming that s.48A of the Act did not bar the second application because in accordance with the principles in Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 the first application was never valid. Indeed, the first application was deemed to be invalid.
On 17 January 2002 the respondent's delegate refused the second application.
On 11 February 2002 the RRT received an application for review dated 31 January 2002. The review hearing was conducted on 29 May 2003 and the applicant was assisted by an interpreter. His adviser did not attend.
On 27 June 2003 the RRT handed down its decision of 6 June 2003 affirming the delegate's decision not to grant a protection visa to the applicant. The applicant received not only the written reasons but a tape of the hearing.
The applicant's claims are essentially as set out in the annexure to his application for a Protection (Class XA) visa and as referred to at page 73 of the Court book in the proceedings. These claims were also set out in the decision of the Tribunal under the heading Claims and Evidence. I shall not reiterate them here.
The previous RRT decision as to matters raised in the applicant's subsequent claims as referred to in the preceding paragraph was known to the applicant. It contained matters that were concerning to the earlier Tribunal and thus known to the applicant. For example, inconsistencies in the history provided by the applicant and the satisfaction of that earlier Tribunal that the summons produced by the applicant was a "fabricated document". Therefore, the applicant was clearly on notice as to deficiencies in his material that he might need to address before coming to the RRT on the second occasion.
Furthermore, various matters were raised by the delegate on the second protection application in letter to the applicant dated 12 December 2001 which required comment from the applicant and which pointed again to matters requiring satisfaction by the delegate. The applicant did not respond.
RRT decision
The RRT considered all of the claims put before it by the applicant. The RRT also considered country information available to it. I am satisfied the reasons were comprehensive and where the Tribunal failed to make a finding on a particular matter it was because it was subsumed in findings of greater generality or because there was a factual premise upon which a contention rested which had been rejected. I am satisfied that none of the matters raised by the applicant were overlooked by the Tribunal (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184).
The Tribunal did not accept that the applicant faced a real chance of persecution for any Convention reason if he were to return to Sri Lanka because specifically it did not accept that;
a)the applicant was apprehended by the Sri Lankan authorities in March 1995;
b)the applicant encountered "any of the difficulties he claims to have occurred then (in March 1995) and in the proceeding weeks";
c)the applicant was involved or suspected of involvement in the bombing of a Kolonnawa oil installation in October 1995;
d)in relation to the bombing in October 1995, the applicant ever went into hiding from the Sri Lankan authorities;
e)letters purportedly from the applicant's sister and a Court summons in respect of the applicant were genuine documents;
f)even if the applicant was wanted by the Sri Lankan authorities, the applicant had demonstrated any sufficient Convention nexus;
The Tribunal concluded that the applicant had -
fabricated his claims of being suspected of involvement with the LTTE for any act or association, and of having been investigated as a consequence.
The Tribunal said:
The letters from the applicant's sister have a contrived and self‑serving tone. No satisfactory explanation has been provided for the very lengthy delay in submitting them. The Tribunal does not accept that the applicant's adviser would have delayed submitting relevant correspondence until after the decision of the delegate, and some two years after receipt of the first of those letters, or that he would have ever advised the applicant that letters alluding to continuing visits to his home by security officers did not support his case. Another photocopied document headed "Summons for the Accused" is dated 11 March 1997, nine months after the applicant left Sri Lanka legally. It does not state what the applicant is charged with, why he must attend Court, or when. Its language appears contrived and its purpose vague. Despite the criminal matters to which the applicant claims it relates, the aforementioned document is issued in a civil Court.
In weighing the foregoing, the Tribunal concludes that the letters, purportedly from the applicant's sister, have been contrived in order to bolster false claims to refugee status. In assessing all the material before it the Tribunal also concludes that the Court summons lacks genuineness.
Consideration
In essence, the applicant argues as follows: (1) that the Tribunal failed to properly "review the decision" of the delegate pursuant to ss.65 and 414 of the Act because it did not address all the applicant's claims and information provided by the applicant; and (2) in its use of country information the Tribunal breached the rules of procedural fairness as set out in s.424A of the Act. The applicant withdrew from any allegation that there was a lack of bona fides on the part of the decision-maker. The applicant did acknowledge that to be a serious allegation and that there was in this instance no substance to that argument whatsoever.
Under s.414 of the Act the Tribunal must review a decision of the respondent's delegate where the applicant has made a valid application for review of the delegate's decision. Section 415 provides that for the purposes of the review the Tribunal may exercise all the powers and discretions of the respondent's delegate who made the decision under review, that is, the hearing is a hearing de novo.
Section 65 of the Act requires the respondent's delegate to grant a visa if the delegate is satisfied that, amongst other things, the criteria for the visa prescribed by the Act or the Migration Regulations 1994 (Cth) (“the Regulations”) have been satisfied. Upon review s.415 bestows this power on the Tribunal.
The Tribunal clearly understood its review function. In its decision the Tribunal referred to the powers and discretions of the respondent which upon review the Tribunal was empowered to exercise. It correctly set out the Convention definition of "refugee" and how courts and the legislature have interpreted that definition.
The Tribunal set out the applicant's evidence in a manner that highlighted the inconsistencies and improbabilities of it. Before stating its own findings on the claims as put by the applicant the Tribunal recited and analysed the applicant's claims and their inherent improbabilities and inconsistencies. It is quite clear that there was a typographical error in that part of the reasons which said the applicant claimed that:
He was released on weekly reporting conditions, but that he reported to the authorities on only one or two occasions.
In reciting this claim in its analysis the Tribunal stated that:
Even though he did comply with his weekly reporting conditions after a fortnight or so, he was never apprehended
- rather than refer to his non-compliance which was clearly intended.
Infelicities of expression such as this do not give rise to jurisdictional error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) where the Court said:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any Court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
The applicant seeks to challenge findings of fact of the Tribunal which is not open to this Court. This Court cannot review the merits of the Tribunal decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Likewise, the weight given to various pieces of evidence including aspects of country information is a matter for the Tribunal to determine. It is not a matter for this Court (Minister for Aboriginal Affairs v Peko -Wallsend Ltd (1986) 162 CLR 24 at 39-40). The applicant argues that the Tribunal failed to take into consideration aspects of country information quoted in its decision. I reject this submission. The fact that the material was quoted in full in the decision suggests that those aspects of country information were taken into account by the Tribunal but ultimately not accepted by it.
The applicant seeks to challenge the Tribunal's credibility findings and miscellaneous factual findings. Credibility is a matter for the Tribunal "par excellence" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407).
The Tribunal is not obliged to deal specifically with every item of evidence in its reasons and I am satisfied that the Tribunal has considered those matters which the Tribunal was bound to take into account in reaching its decision (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 593).
The Tribunal did properly address the applicant's claims of a well‑founded fear of persecution for imputed political opinion as a sympathiser of the Liberation Tigers of Tamil Eelam (LTTE) or for any other Convention reason. The Tribunal found on the basis of the material put before it by the applicant that the applicant's account of past persecution was fabricated. I am satisfied those findings were open to the Tribunal on the material before it. No jurisdictional error of law has been committed by the Tribunal in this regard.
I reiterate findings of fact including the making of findings of credibility are within the jurisdiction of the Tribunal and not this Court. It is in contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 for this Court to engage in merits review. There is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v Commonwealthof Australia (1999) 197 CLR 510 at 137 and as referred to in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167).
Procedural fairness under section 424A
Section 424A of the Act relevantly states that:
(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 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) Information and invitation must be given to the applicant:
(a) .. by one of the methods specified in section 441A; or
(b) ..
(3) This section does not apply to information:
(a) that is not specifically about the applicant or any other person and is just about a class of persons of which the applicant or other person is a member; or
(b) ...; or
(c) ..
Section 441A specifies the methods for the purposes of s.424A(2)(a). They involve handing or despatching a document to the recipient or transmitting the document to the recipient by fax, email or other electronic means. No provision is made in s.441A for the Tribunal to give particulars of information verbally.
The applicant alleges that he was denied procedural fairness in respect of the Tribunal's use of country information, and in particular the extracts as set out in its decision. The country information concerned:
a)treatment of Tamils in Colombo pursuant to security measures imposed by the Sri Lankan authorities in response to the threat of terrorist activities by the LTTE;
b)reports of Sinhalese suspected of sympathising with the LTTE.
During the Tribunal hearing the Tribunal member read out extracts of the country information later cited in its decision and invited the applicant to respond. I accept the respondent’s submissions that there is no basis for the applicant to submit that he was denied natural justice and no evidence to suggest that the Tribunal did anything but disclose at the hearing the substance of the material it took into account and which was adverse to the applicant's claims and invited the applicant to respond. The material cited by the Tribunal, and as referred to in paragraph 31(a) of these reasons was not part of the Tribunal’s reason for affirming the decision under review. That material concerned the treatment of Tamils by the Sri Lankan authorities and was not relevant to the Sinhalese applicant and his claim. In that respect, such country information was not covered by s.424A(1).
The material cited by the Tribunal as to the reports of Sinhalese suspected of sympathising with the LTTE was part of the reason for the Tribunal affirming the decision under review. As such, that material came within the ambit of s.424A(1). However, it clearly falls within the exception of 424A(3)(a) in that:
a)it is not specifically about the applicant or any other person; and
b)it is just about a class of persons of which the applicant is a member, namely Sinhalese Sri Lankans claiming that they were suspected by the authorities of sympathising with the LTTE.
Accordingly, I accept the respondent’s submissions that section 424A does not apply.
Even were s.424A to apply, the applicant did not demonstrate any denial of natural justice by the Tribunal. In the absence of procedural unfairness a failure by the Tribunal to comply with sub-s.424A(2) does not constitute a jurisdictional error (Applicant NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 at 22-23).
There is no evidence of a lack of procedural fairness. The applicant obtained a tape recording of the proceedings but does not produce same to the Court and does not show that his rights have been materially affected by anything which occurred. The substance of the material against the applicant was well known to him before he attended the Tribunal hearing and he cannot show that he suffered any "practical injustice".
The applicant does not raise any other material that he wished to or could have put before the Tribunal other than the material referred to in his oral evidence. There is no suggestion that he was not previously aware of the substance of the relevant country information referred to by the Tribunal. I accept the respondent's argument that there is no basis to suggest that the outcome of the proceedings before the Tribunal would have been different even if the Tribunal had given the applicant particulars of the relevant country information in the form required by sub-s.424A(2).
I am satisfied that the Tribunal's decision demonstrates no jurisdictional error of law. Accordingly, the application is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 19 October 2004
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