MZWGL v Minister for Immigration
[2005] FMCA 487
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGL v MINISTER FOR IMMIGRATION | [2005] FMCA 487 |
| MIGRATION – Refugee Review Tribunal – protection visa – whether jurisdictional error/bad faith. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Re Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 |
| Applicant: | MZWGL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 498 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 17 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr S Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 498 of 2004
| MZWGL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In an application filed on 11 May 2004, the applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) dated 22 March 2004 which was handed down on 16 April 2004. In its decision, the RRT had affirmed a delegate's decision not to grant the applicant a protection visa. The applicant had lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs on 4 January 2002. It is significant to note that in support of that application, the applicant had relied upon a statement of the same date. In addition to that statement, it is clear from the court book and from the RRT decision itself, that the applicant had relied upon a letter from him dated 1 July 2002. An audio-cassette recording was relied upon of the delegate's interview with the applicant conducted on 27 September 2002, and the delegate's decision record. Further written submissions by the applicant dated 7 November 2002 were provided, together with other material, including reports primarily concerning violence perpetrated against Muslims in India.
The applicant has confirmed today that before the RRT hearing on 13 January 2004, he was unrepresented, though gave evidence. Likewise today he is unrepresented and seeks to rely upon a document setting out what might be described as his contentions and which otherwise stands as an amended application. The document filed 25 August 2004 entitled ‘An Amended Application and Contentions of Fact and Law’ is conceded by the respondent to be an amended application, together with contentions of fact and law effectively in compliance with orders made in this matter.
The applicant is an Indian citizen who arrived in Australia on
7 December 2001 using a false passport. I should add that that issue was the subject of part of the findings of the RRT. In fact the RRT did not accept that the applicant had obtained a false Indian passport to avoid detection by Indian authorities when he travelled to Australia and otherwise did not accept other allegations made by the applicant to which I shall refer presently.
Before the court today, when asked to elaborate upon the grounds of this application and contentions, the applicant sought to refer to various documentation which he claims certifies that in Australia he uses his correct name and has done so appropriately in various forms. It is not appropriate for me to receive that evidence, though I note the submission made by the applicant to that effect. Noting it and accepting it for present purposes does not of itself provide any additional ground or basis upon which judicial review could succeed in this application.
In his application, and in the material before the tribunal, there are a number of assertions by the applicant which may properly be regarded as expressing disappointment and grievance with the decision by the RRT. By way of example, the applicant claimed to be aggrieved by the decision and further asserts that the decision is clearly ‘wrong’. He otherwise claims that the decision was based on country information and did not take into account his claims, although the RRT had summarised them in its decision but did not take them into account. He claims the RRT ignored the merits of his claims, and perhaps relevantly for this application, further asserts it did not act in good faith in relation to the claims. Essentially, in oral submissions made before the court this day, the applicant appears to assert that he was not given an appropriate opportunity for the matters upon which he relies to be properly heard and determined by the RRT. To that extent, I take him to be asserting that there was a lack of good faith.
It is clear from the court book that the documents to which I referred earlier set out in some detail the applicant's concerns. Those concerns are accurately set out, in my view, in the RRT's decision. When asked to specifically refer to any items which the applicant claims he was not able to rely upon or bring to the attention of the RRT, he was not able to identify with precision any additional material. In any event, having regard to the nature of this application and the role of the court upon judicial review, it seems clear to me that on a proper reading of the material in the court book, as summarised by the RRT in its decision, that it has been cognisant of the matters raised and relied upon by the applicant, who, at one point of time, was at least represented by a migration agent.
It is significant to note that the applicant had made a range of claims before the RRT, and having assessed those claims and in affirming the delegate's decision to refuse to grant the applicant a protection visa, the RRT made significant findings which could be described as findings in relation to credibility. By way of example, it referred to the evidence of the applicant being frequently inconsistent or incongruous, and specifically found the applicant was not a credible witness. It then assessed the evidence and provided reasons and a basis for the credibility finding (See court book pp 197 to 200).
It is appropriate to set out, as listed in the respondent's outline of submissions, the relevant conclusions of the RRT on the basis of the assessment it made of the applicant's evidence, as follows:
a)The applicant did not have a genuine fear of being persecuted in India by Hindus, Hindu extremists, BJP supporters, Shiv Sena supporters or the Indian authorities by reason of his Muslim religion or imputed political support of the Muslim League.
b)The applicant did not face any outstanding criminal charges in India as a result of his Muslim religion or imputed political support for the Muslim League.
c)The applicant concocted evidence in relation to:
i)Being threatened, arrested, charged, summonsed and physically mistreated by Indian police;
ii)Being threatened and physically mistreated by Hindus, Hindu extremists, BJP or Shiv Sena supporters or "big bosses".
d)Accordingly his claims or evidence in these respects were not accepted.
e)He did not obtain a false passport to avoid detection by the Indian authorities when he travelled to Australia.
f)The Indian police had not continued to question the applicant's parents about him after his departure.
g)Other people had not asked the applicant's wife about his whereabouts after his departure.
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 is submitted on behalf of the respondent that on a proper analysis of the applicant's submissions and contentions in the document which is the amended application of contentions of fact and law that effectively the applicant seeks to encourage the court to undertake merit review. It is further submitted that the finding of credibility is indeed a finding in these circumstances which has been described as a matter for the tribunal ‘par excellence’. See Re Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 at paragraph [67]).
Applying the authorities to which I have been referred, it seems clear to me that the RRT has embarked upon its fact finding process and an assessment of credit in a manner that was reasonably open. I cannot detect any error of a kind which would justify this court concluding that there has been jurisdictional error and that accordingly there should be any judicial review in a manner favourable to the application. Whilst it appears that the applicant continues to be aggrieved by the findings of the RRT, the fact that he is aggrieved by those findings is not of itself a sufficient basis upon which this court should uphold the application. On a proper reading of the RRT's decision, it, in my view, has appropriately referred to the specific submissions lodged by the applicant and has had regard to the evidence given by the applicant. In considering the issue of whether or not it has failed to act in good faith, I am mindful of authorities which I shall incorporate in this decision which clearly establish that such an assertion is one which requires a significant burden upon the applicant and what might be described as a significantly high threshold to overcome (See R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400 per Dixon J).
I can see no basis whatsoever for concluding that the RRT has not acted in good faith or failed to make an honest attempt to deal with the subject matter. Accordingly, in my view, applying the authorities to which I have referred and having considered the material before the court, it follows that the application should be dismissed with costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 March 2005
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