MZWGO v Minister for Immigration
[2005] FMCA 526
•5 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGO & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 526 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether error – whether updated country information shall be received – application dismissed – no particulars – abuse of process – order nisi previously refused. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 |
| Applicants: | MZWGO & MZWGP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 503 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 5 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2005 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondent: | Mr S. Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application as amended be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 503 of 2004
| MZWGO & MZWGP |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In an application filed on 11 May 2004 review is sought of a decision made by the Refugee Review Tribunal (the RRT) which was dated 15 November 2000.
The applicant is a citizen of Sri Lanka. He arrived in Australia on
2 June 1997. On 11 August 1998 together with his wife he applied to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. A delegate of the Department refused the application on 27 October 1998. On 20 November 1998 the applicant applied to the RRT, for a review of the delegate's decision. On
18 September 2000 the RRT invited the applicant to attend a hearing on 9 November 2000. The applicant then attended the hearing and gave evidence.
As indicated earlier, on 15 November 2000 the RRT affirmed the delegate's decision to refuse the protection visa. The applicant appears before this court unrepresented, though assisted by an interpreter. He has relied upon an amended application filed 21 March 2005 and otherwise relied upon contentions of fact and law filed on the same date. In support of the original application he had relied upon an affidavit sworn by him on 11 May 2004.
The applicant lodged the application for review of the RRT decision on 22 May 2003 with the High Court (the first application). That matter was remitted to the Federal Court, and then on 5 December 2003 was transferred to the Federal Magistrates Court. On 18 March 2004 this court ordered that the application for an order nisi be refused (the first judgment). I presided over that hearing and delivered reasons for the first judgment. I do not see any reason why I should not consider the current application simply as a result of making a decision refusing the order nisi. Leave to appeal from that first judgment was sought by the applicant, though it would appear that on 23 April 2004, His Honour Ryan J dismissed that application for want of prosecution.
The current application before the court, which I refer to as the second application was filed on 11 May 2004 and is subject to an amendment filed 21 March 2005.
The amended application in my view seeks to assert that the decision of the RRT was made either without jurisdiction or was affected by error of jurisdiction and/or affected by jurisdictional error. However, although referring to the RRT asking the wrong question, identifying the wrong issue or failing to take account of relevant material, or taking into account irrelevant material, the particulars subjoined to paragraph 2 under the heading of Details of Claim seek essentially to assert that the decision of the RRT was wrong. The particulars provide the following:
“The tribunal is wrong when it states that it does not accept my explanation that I had a friend report these matters to the police. If I had been harassed in the way claimed and wished to obtain police protection, the tribunal does not accept I would send another party who was not a witness to the assaults to make a claim on my behalf. What the tribunal has not taken into account is that in my original submission I stated that when my house was raided by PA supporters, I recognised a number of ex-police officers. Therefore, given this observation, it's only natural I would be hesitant in going to a poice station, and it was because of this reason that I chose to send a friend. The tribunal has not taken this very important factor into account.”
It is clear to me on a proper reading of the RRT decision that it has endeavoured to deal with the claim as presented by the applicant. Before the court this day the applicant sought to reiterate that the situation in Sri Lanka ‘is not good’, and further stressed that he was not happy with the current situation based on information he has received from relatives and newspaper reports. It is not appropriate for the court to receive any updated newspaper reports in an application of this kind, given the nature of the application made to the court, I have noted, in any event, the applicant's concern which he no doubt genuinely feels at the prospect of returning to Sri Lanka. It is perhaps also of some significance that he has indicated to the court that he now has a 20‑month old child born in Australia since the applicant and his wife travelled to this country.
Nevertheless, in considering the claims and evidence, it is clear that the RRT has addressed the relevant issues placed before it by the applicant. It has in fact noted that the applicant who claimed to be a UNP member feared persecution at the hands of PA supporters because of his political opinion if he returned to Sri Lanka. In reaching its decision, the RRT rejected the applicant's evidence and his application for a protection visa. I note at page 125 of the court book under the heading ‘Findings and Reasons’ the RRT states the following:
“I accept that the applicant may be a member of the UNP.
I do not accept, however, that the applicant has been harassed in Sri Lanka in the way that he claimed, for the reasons outlined below.
I find it implausible that the applicant would have been involved in the sort of policy dissemination activity he claimed on behalf of the UNP in May 1997. There was no general election planned in Sri Lanka until October 2000, and no local government elections were about to be held either, with the local election having been in Sri Lanka, including for Colombo, in March 1997, the month before the applicant returned. (See the 1997 US State Department Report on Human Rights in Sri Lanka, p 1705).
I have seen no evidence to show that virtually non-stop campaigning by either political party occurs in Sri Lanka, and the applicant has not been able to provide any evidence to support this proposition. I therefore do not accept that the applicant was involved in UNP activities in the way that he claimed.”
In its decision the RRT then goes on to refer to the attacks allegedly by PA supporters upon the applicant, and states the following:
“The story about being attacked twice by unidentified PA supporters is a relatively simple one. I found the applicant's accounts of the attacks on him and the circumstances surrounding them to be unconvincing. He cannot explain how PA supporters would know that he would be staying at his in-laws place when they attacked him. Nor could he explain how they would know that he was planning to go to a particular shop to look for clothes with his wife when he indicated that at that stage he was in hiding from them. Nor do I accept that if they had attacked the applicant for the reasons they claimed that they would have simply told some of the crowd that they were from the PA and wanted the applicant to stop participating in politics. I find it implausible that a person who had been out of the country for about 20 months and had been in Sri Lanka again for approximately six weeks only would be harassed by PA supporters in the way the applicant claimed.
It is clear that the RRT, after considering other issues raised, and having considered country information, then proceeds in the conclusion to state the following:
When I consider all of the information, both individually and cumulatively, I find that there is not a real chance that the applicant or his wife would be persecuted for reason of his political opinion of support for the UNP if they were to return to Sri Lanka now or in the foreseeable future. I therefore find that the applicant and his wife do not have a well-founded fear of persecution for reason of his political opinion or support of the UNP if he were to return to Sri Lanka now or in the foreseeable future.
It is submitted on behalf of the respondent that the material placed before this court on behalf of the applicant essentially amounts to an attack on a finding of fact. It is also claimed that matters raised by the applicant in an earlier and separate application for refugee status are also dealt with in the material before the court in this application. Reference was made appropriately to the RRT decision where it states in relation to that issue, the following:
I have not taken into account the claims made by the applicant in relation to his earlier application for refugee status, given section 416 of the Migration Act indicates that I am not required to consider any information from an earlier decision of the Refugee Review Tribunal and that I may take any such decision made to be correct because of that information.
In the present application, the respondent, apart from submitting that this is essentially a claim seeking to review the merits of the decision of the RRT, has also relied on other issues. Those issues include that the application is out of time, that there has been a delay or that Anshun estoppel applies. Further, and perhaps more relevantly in my view, there is an assertion that this is an abuse of process. In my view the chronology of the events and the matters now raised in the application as amended, together with the supporting material, does not provide any or any apparent basis upon which this court should intervene or upon which judicial review should occur. Nor am I satisfied in the present application that there is any basis upon which it could be claimed there has been jurisdictional error of the kind required in accordance with the authorities.
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).
In addition to applying the appropriate principles of law in relation to jurisdictional error, I note and accept the authority referred to by the respondent of the Full Court in the matter of NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 where the court states at paragraph 9, the following:
The finding of facts including the making of findings of credibility was uniquely within the jurisdiction of the tribunal and not within the jurisdiction of the court. It would have been in contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259-272 for the court to have engaged in a merits review. Furthermore, there is no error of law, let alone jurisdictional error, in the tribunal making a wrong finding of fact.
Applying the principles from that decision, having regard to the applicant's contentions and the particulars subjoined to the grounds now sought to be relied upon in the amended application, it is my view that in reality what is sought to be challenged is a finding of fact. I am not prepared to find that this might be a case where one could properly assert there has been a wrong finding of fact, but rather it seems to be that the claims have been considered, a decision reached, and the decision that has been reached by the RRT is one reasonably open to it. Having regard to the chronology of events and the lack of merit in this application, I am satisfied that it is appropriate to dismiss the application on its substantive merit, but further, in my view, having regard to the chronology of applications and consideration of the issues agitated for and on behalf of the applicant, I am further satisfied that in this case it could properly be claimed that this is an abuse of the court process. It follows, for those reasons, that the application as amended should be dismissed and the applicant should pay the respondent's costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 April 2005
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