MZWCQ v Minister for Immigration
[2005] FMCA 187
•25 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWCQ v MINISTER FOR IMMIGRATION | [2005] FMCA 187 |
| MIGRATION – Protection visa – no jurisdictional error. |
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
| Applicant: | MZWCQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 83 of 2004 |
| Delivered on: | 25 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 January 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms J Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 2 February 2004 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $6000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 83 of 2004
| MZWCQ |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed by the applicant on 2 February 2004 seeking judicial review of a decision of the Refugee Review Tribunal (the RRT) which had affirmed a decision of a delegate of the respondent. The RRT decision was made on 17 December 2003 and it had affirmed a decision of the delegate made on 24 October 2002 to refuse the applicant's application for a protection visa.
The application filed in this court refers to a statement attached and at the commencement of these proceedings the applicant, who is unrepresented, sought to rely upon that statement. Noting as I do that the statement has now been reproduced at page 3 of the court book it is not strictly necessary for the statement to remain on the file, though
I note for the present purposes it effectively formed part of the application.
The applicant seeks to rely upon that statement in support of his application and otherwise seeks to rely upon a document entitled “An Amended Application and Contentions of Fact and Law” which he filed on 10 October 2004. The respondent has sought to rely upon the respondent's contentions of fact and law filed 24 December 2004 and otherwise made further brief submissions. As with a number of these applications it is difficult for applicants to necessarily comprehend the limited role of the court in judicial review of decisions of this kind.
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.”
By way of background it is noted that the applicant is a citizen of India. He arrived in Australia on a business visa on 11 July 2002. He applied for a protection visa on 16 August 2002 and, as indicated, that application was refused by the delegate on 24 October 2002. The decision of the delegate was affirmed by the RRT in its decision on 17 December 2003 and then the application was made to this court.
The RRT in its decision‑making process refers in some detail to the allegations made by the applicant. It sets out in some detail, which appears in the court book (pages 121 to 125) the claims and evidence of the applicant. It quotes in full a written statement of the applicant which had been provided. At the hearing it is noted that the applicant gave evidence and specifically focused upon three incidents, which have been accurately summarised in the respondent's outline of submissions. The incidents are as follows:
(1)In September 1998, the applicant and his mother had gone with a group of people led by Christian Brothers from other countries to distribute food, medicine and blankets to the poor in Gujarat; after warnings at two separate places by local Brahmin leaders, the mission was aborted; the threats were made to the Christian Brothers and never to the lay members or to the applicant (because the Brothers were foreigners).
(2)In December 2001, the applicant and others were preparing for a New Year's Eve party at the church compound; they were asked by a group of men to call off the party as there was bound to be a disruption; about 50 men holding flags symbolising Viswa Hindu Parishad forced their way into the function, kicking over tables and taking the band's instruments; a number of these men may have been drunk; the applicant and four of his friends were carrying hockey sticks in anticipation of trouble and decided to take the Hindu group on; they later heard that the group had sustained broken legs, ribs and hands; he fled to Goa until mid February and, after he had returned to Bombay, police took him for questioning; the police said that they could have been called to assist at the December 2001 party, and that they would charge him; he bribed the police not to charge him.
(3)In March or April 2001, he went with a group led by Christian Brothers on a mission to Surat to distribute food, medicine and bedding and to provide basic education in English for the children; the local VHP President told all the members of the group that if they continued, there would be serious after effects; the next day their (unoccupied) vehicle was damaged and all their supplies burned; the police initially refused to record their complaint; that night, he and some members of the group stoned and ransacked the office of the VHP President and badly injured the five men who were in the building; one of these men later died; two of his group were detained and one was still serving a sentence for inciting trouble; warrants were issued for the entire group; since then, he had been constantly on the run.
It is clear that the RRT had in fact accepted the applicant's evidence in relation to the three incidents. The applicant also gave evidence which was noted and referred to by the RRT in relation to the following matters:
·that the reason why he had been unemployed between 1981 to 1983 was related to his health and not to his religion, as claimed in the application for a protection visa;
·that he had applied for his visa and his family visas before he went to Gujarat in March 2002 because he was planning to visit friends in Western Australia and then relatives in the United States;
·that he would have no trouble, apart from the warrant for the assault; that he was resiling for all his earlier claims and statements, including his general comments about the persecution of Christians in India; that he did not leave India fearing suffering at the hands of the Hindu government but to avoid the warrant for his arrest; that a Hindu or a Muslim charged with similar offences would be punished in the same way; that he might be targeted by these other rival groups.
The RRT did not accept that the applicant was specifically targeted or persecuted in Gujarat in 1998, nor did it accept that attention to the applicant and his friends following the assault in 2001 was related to any convention reason. It found that any punishment the applicant would face on his return to India would be as a consequence of his actions in the assault on April 2002 and it would be administered under a law of general application. The RRT did not accept that the applicant would face a real chance of serious harm amounting to persecution because of his religion. In particular I note in its decision at page 133 of the court book the RRT states the following after making relevant findings:
“The Tribunal notes that the applicant resiled from all of the other claims made in the original protection visa application and resubmitted with his application for review. The Tribunal notes that the applicant said he explained his situation fully to his adviser and that the adviser was responsible for writing up the claims. The Tribunal notes that the applicant himself when asked at the hearing said that he did not flee India fearing suffering at the hands of the Hindu government but because he was avoiding the warrant for his arrest. …”
It is fair to say that the RRT, having considered all the material, further went on to make findings that it did not consider that it was likely that the applicant would be targeted by other rival groups in Gujarat or Mumbai but it considered that police protection would be available to him. It otherwise did not accept the applicant had established any convention grounds for his fear of returning to India and therefore found that he did not face a real chance of persecution, either because of his religion or for any other convention reason now or in the reasonable foreseeable future. It was then not satisfied the applicant was a person to whom Australia had obligations under the Refugee Convention.
When the applicant appeared before the court this day apart from relying on the material to which I have referred he otherwise indicated that the reason he has fear of return to India is a fear of persecution and harassment. It is clear that in the material provided by the applicant that he is not content with the RRT's findings of fact and of course the ultimate finding that he should not be granted a protection visa.
On my reading of the material and applying the relevant principles of law to which I have referred earlier in this judgment I am satisfied that there has been no jurisdictional error of a kind which would permit the court to interfere with a decision of the RRT. In my view the RRT has properly embarked upon its fact‑finding mission in this case, has assessed the evidence of the applicant and specifically has accepted as a key finding matters referred to by the applicant in relation to the three incidents that were recited by way of summary earlier in this judgment. It is not a matter, in my view, where it is either necessary or appropriate for the RRT to pursue further inquiries, as suggested by the applicant in his written submissions. Nor is this a case where it could properly be said, having accepted the applicant's version of the key events, that it would be appropriate for the RRT to seek out any further information in considering this application. It is also my view that in this matter there can be no proper basis upon which it could be asserted, if I am able to take into account, the concept of Wednesbury unreasonableness as in this case, and indeed in other cases, it is inappropriate to do so. Even if I were minded to reconsider the matter in a more general manner it is my conclusion that in this instance the RRT has simply made a decision based upon the material then before it and a decision which was reasonably open to it on the facts as presented by the applicant. It follows for those reasons that the application should be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 25 January 2005
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