MZWAN v Minister for Immigration
[2005] FMCA 376
•7 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWAN v MINISTER FOR IMMIGRATION | [2005] FMCA 376 |
| MIGRATION – Judicial review of decision of Refugee Review Tribunal – protection visa – police in home country seeking to interview applicant in relation to murder investigation – no jurisdictional error disclosed. |
Judiciary Act 1903 (Cth), s. 39B
Migration Act 1958 (Cth), ss. 36, 91R, 474
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Anthonypillai (2001) 106 FCR 426
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
NAYQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 365
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | MZWAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1329 of 2003 |
| Delivered on: | 7 April 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 3 February 2005 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondent: | Mr W.S. Mosely |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1329 of 2003
| MZWAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
27 November 2003 seeking judicial review of the decision of the Refugee Review Tribunal on 31 October 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
The history
The applicant is a citizen of India. He came to Australia on 2 January 2002 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 January 2002.
On 14 May 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 17 June 2002.
The applicant is of Muslim ethnic background from the Indian state of Tamil Nadu, and claimed that he can not return to India as he fears persecution by reason of his Muslim faith and political support for the party Dravida Munnetra Kazhagam (“DMK”). In the early 1990s the applicant became close to various leading members of the DMK (then the ruling party in Tamil Nadu) and worked in a political capacity and with the electorate. The applicant claimed that local police in Tamil Nadu believed he had been involved in a violent riot between Muslims and Hindus in 1996. The applicant was working as a personal assistant to his cousin Mr Nizamudeen at that time, who held a seat (‘MLA’) in Nagore as a member of DMK. Following the riot, Mr Nizamudeen was accused of involvement in same, and the applicant claimed that because Mr Nizamudeen was a MLA, the police focused their attention on Mr Nizamudeen’s close employees (such as the applicant), rather than Mr Nizamudeen himself. The applicant claimed that the police attended his home, but as he was not there, they arrested his cousin Rasheed instead. Rasheed and Mr Nizamudeen’s former driver were still in prison awaiting trial when the applicant left India.
In 2001, the opposition party AIADMK won power via an election in Tamil Nadu. Formerly prominent members of the DMK, who were also close associates of the applicant, were arrested. The applicant claimed that police wanted to question him about the 2001 murder of Mr Ramesh and his family, because the applicant was a close associate of Mr Nizamudeen, and that he was warned of an impending visit by the police to his home and was thus able to avoid being arrested by them. The applicant then left India and went to Japan. He was refused entry to Japan and returned to India, where he was told that the police had been looking for him at his cousin’s residence. The applicant’s friend assisted the applicant to obtain a visa for Australia, and after some difficulties the applicant left India and arrived in Australia.
The applicant claimed he feared to return to India because he would face persecution due to his political background, his opposition to the current Tamil Nadu Government, and his Muslim ethnic identity. The applicant’s wife, four children, parents and sister live in Nagore, Tamil Nadu.
In the decision made by the Tribunal on 31 October 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found 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 applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. Specifically, the Tribunal:
a)found that the applicant was a truthful witness and his evidence was plausible;
b)accepted the applicant’s evidence that the police in Tamil Nadu wanted to question the applicant in respect to Mr Ramesh’s murder in 2001, but based upon the applicant’s evidence that he knew very little about that incident, did not accept that the applicant would have been arrested by the police;
c)considered that “the police have sought to question to him [the applicant] for the essential and significant reason of undertaking appropriate measures to investigate criminal matters”; and
d)was not satisfied that the applicant had a well-founded fear of persecution by the Tamil Nadu Government or authorities by reason of his political support for the DMK.
On 27 November 2003, the applicant lodged an application in this Court, being MLG 1329 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant filed an amended application and contentions of fact and law on 20 April 2004. The applicant sought constitutional writs and asserted that the Tribunal had fallen into jurisdictional error by, summarily:
a)misapplying the definition of ‘refugee’ and not taking into consideration the applicant’s persecution by reason of his religion/race; and
b)failing to ask the necessary questions to establish the link between the authorities’ interest in the applicant for the murder of Mr Ramesh and his political persuasion.
The respondent’s contentions of fact and law, which were filed on
13 May 2004, rebutted the applicant’s contentions arguing, summarily, that the Tribunal:
a)dealt with each of the applicant’s claims and specific incidents;
b)gave ‘genuine and realistic consideration’ to the evidence before it, and even if it did not, that would not be a basis for review (Minister for Immigration & Ethnic Affairs v Anthonypillai (2001) 106 FCR 426); and
c)“the Court cannot set aside a decision merely because it regards the Tribunal as having followed a process of logic or reasoning which does not commend itself to the Court”.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
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 and Multicultural Affairs v Yusef (2001) 206 CLR 323 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 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions & findings
The contention of the applicant is that the Tribunal misunderstood and misapplied the definition of the term “refugee” because it failed to give proper consideration to the claims of the applicant taken cumulatively. In particular, he contends that the Tribunal has not dealt with his claim that he was persecuted for reasons of his religion / race as a Muslim, coupled with his political persuasion. It was further contended that the Tribunal did not ask itself the appropriate questions and as a result it committed jurisdictional error.
The applicant’s evidence to the Tribunal centred on two specific incidents in 1996 and 2001. In oral submissions the claim with respect to the 1996 incident was not pursued. While the applicant was among a number of persons who were questioned about the incident, other persons were charged and the applicant’s evidence, which was accepted by the Tribunal, was that the police had no interest in him over the matter at all. And in any event as the Tribunal noted, he went on to live in the village concerned for another five years without issue after the 1996 incident.
The Tribunal said, at Court Book (CB) page 83:
It accepts his evidence at the hearing that Mr Nizamudeen’s driver and Rasheed were charged with murder and attempted murder; that their cases are still pending; and that they are represented by lawyers and will defend the charges against them. It accepts his evidence at the hearing that the police also sought to question the applicant about the murder at the time that Mr Nizamudeen’s driver and Rasheed were arrested. It also refers to and accepts the applicant’s evidence at the hearing that the police did not charge him with any criminal offence in relation to the murder; and his evidence to the effect that the police did not continue to have an adverse interest in him after they detained Mr Nizamudeen’s driver and Rasheed.
The second incident in 2001 also involved a murder, in that instance, of a person called Ramesh, who had received some political favours from the previous government. At CB page 83:
The Tribunal accepts the applicant’s evidence at the hearing that the police wanted to talk to associates of Mr Nizamudeen, including the applicant, as part of their investigation into Ramesh’s murder…
The Tribunal then went on the say:
… and that the applicant avoided talking to police about it. It is also [the applicant’s] evidence at the hearing that he was afraid of being arrested by the police on that occasion, although it finds it implausible that the police would have arrested him given his evidence at the hearing that he knew very little about Ramesh and was not associated with his murder.
Counsel for the applicant referred to the passage at CB page 81:
He was asked how he was disadvantaged by the DMK’s electoral loss in May 2001. He answered that he knew he would be worse off; he was afraid that the police would harass him; and that Mr Nizamudeen had protected him when he was an MLA. He was asked why the police would want to harass him after the DMK lost the elections in May 2001. He responded that a lot of hostilities could have built up because of the work he had been doing for Mr Nizamudeen. He was asked why the police would want to harass him given that work. He responded that he had mediated if there had been frictions, and the view of the police was that proper channels should have been used in those circumstances. He was asked whether he had dealings with the police in Tamil Nadu after the DMK lost the May 2001 elections. He responded that he did not. He was in Madras and then got a visa.
Then there is a reference to the fact that the police came looking for him after Ramesh’s murder as they wanted to talk to people who had been connected to Mr Nizamudeen. The Tribunal further says at CB page 81:
He was asked why he did not tell the police what he knew of Ramesh. He responded that he knew very little about Ramesh. He was asked why he did not meet with the police and tell them that. He responded that it could have led to other things. When asked to explain, he responded that he feared he would be arrested because Ramesh had been murdered and he was associated with the crime.
In my view all of this indicates that there was no suggestion that the police had any particular interest in the applicant other than they wanted to interview persons who were associated with the murder. In light of the evidence that he gave at the hearing, the Tribunal was prepared to accept as a matter of fact that it was implausible that the police would have arrested him but it did accept they might want to question him because they were questioning people who were associated with Mr Nizamudeen.
The Tribunal, at CB page 81, then referred to section 91R(1)(a) of the Migration Act and the fact that the persecution which the applicant fears must be for one of the Convention reasons, and further that persecution for multiple reasons will not satisfy the relevant test unless the Convention reason or reasons constitute at least the essential and significant motivation. The Tribunal goes on to find, at CB page 83-84:
Based on the applicant’s evidence at the hearing about his dealings with the police and their interest in questioning him about Ramesh’s murder, the Tribunal considers that the police have sought to question to him for the essential and significant reason of undertaking appropriate measures to investigate criminal matters.
The Tribunal is therefore not satisfied that the applicant has a well founded fear of being persecuted by the Tamil Nadu Government or the Tamil Nadu authorities for reasons of his political support for the DMK.
There was no misconstruction or misapplication of the definition of the term refugee. Nor was there any basis for the contention that the Tribunal did not give proper consideration to the applicant’s claim that he feared persecution as a consequence of the investigations being made into the murder of Ramesh in 2001.
Finally, it was contended by the applicant that the decision of the Federal Court of Australia in NAYQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 365, had some relevance in that there was no country information before the Tribunal from which it could realistically support the conclusion it reached. In that case of NAYQ, however, the Tribunal based a critical finding on country information which was not supportive of the finding made by the Tribunal. Here, the Tribunal did not rely on any country information. Nor was there any need to, as it reached its conclusions on findings of fact.
In all the circumstances of this matter, I am satisfied that there has been no jurisdictional error disclosed and the application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Julia O’Brien
Date: 6 April 2005
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