MZWIC v Minister for Immigration - [2005] FMCA 471

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIC & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 471

MIGRATION – Protection visa – no error.

Judiciary Act 1903
Migration Act 1958, ss.91R, 91S

Applicants:

MZWIC & MZWID

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 566 of 2004

Judgment of:

McInnis FM

Hearing date:

23 March 2005

Delivered at:

Melbourne

Delivered on:

23 March 2005

REPRESENTATION

Applicants:

In person

Counsel for the Respondent:

Ms H.M. Riley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed on 20 May 2004 be dismissed.
The applicants shall pay the respondent's costs fixed in the sum of $6500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 566 of 2004

MZWIC & MZWID

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the applicants, a mother and son, by an application filed on 20 May 2004 seek to review a decision of the Refugee Review Tribunal (the RRT) dated 24 May 2001. The first applicant is a female citizen of India who was born on 7 February 1962. The second applicant, her son, was born on 5 April 1987 and he is also a citizen of India. They arrived in Australia on 2 January 2000 and applied for protection visas on 1 February 2000. A delegate of the respondent refused the application for a protection visa on 22 March 2000. The applicant then applied to the RRT for review of that decision and the RRT affirmed the delegate's decision.
The first applicant appears before this court unrepresented, although assisted by an interpreter. Perhaps not surprisingly, she has not been able to advance in any detail submissions in support of her application though has sought to rely upon contentions of fact and law filed 29 November 2004. Those contentions of fact and law to some extent provide further grounds upon which the applicant seeks to rely in support of this application for judicial review. I shall deal with the grounds presently. It is sufficient to note that there are some contentions raised by the applicant which clearly have no application and cannot possibly succeed and I shall deal with the grounds in due course, though at the outset indicate that the applicant before this court simply, and perhaps understandably, expressed a strong desire to remain in Australia with her son and indicated it would be better for her and her son if she were permitted to stay.
The applicant has joined the Muin/Lie proceedings in the High Court, though it is difficult to determine the precise date. Nevertheless, it is conceded that it predated the commencement of the privative clause provisions and to the extent that this court then has to consider the matter, it does so in terms of the normal principles which apply in relation to an application under s.39B of the Judiciary Act 1903.
The claims made by the applicant in the application which appear at court book 26 are accurately set out in the respondent's facts and contentions filed on 22 February 2005. The claim is accurately set out by way of summary under the heading ‘Claims and Evidence’ which appears in the RRT decision. Those claims as summarised from the protection visa application and as set out in the respondent's contentions include the following:
a)If she returned to India she will be harassed and possibly arrested and tortured by the police.
b)Her husband had been an active member of the All India Sikh Students Federation (AISSF) and a strong supporter of the Khalistan Movement in Punjab.
c)He left India in 1988.
d)After he left, the applicant was approached and harassed by the police who continually asked about the whereabouts of her husband.
e)She will be mistreated by the Hindu population because her husband and his family had been involved with the AISSF and the Khalistan Movement.
f)She will be mistreated because her family had spoken out against the government and police.
g)The authorities would not protect her.
h)Her husband and his father had been arrested and tortured by police for no legal or justifiable reason.
It is noted that the application had been rejected initially by the delegate on the basis that the political unrest in the Punjab from 1984 to 1992 had subsided long ago, the police had not harmed the applicant herself and that her husband had been absent from India for a period of 12 years. The delegate also considered the applicant could reasonably relocate within India. It would appear that the application to the RRT did not include additional material, though later material was provided by way of an affidavit, a warrant of arrest and a reference.
The applicant provided further information to the RRT. That information is set out, again it would appear accurately, in the contentions of the respondent as follows:
a)She is still married, although her husband left India in 1988 and has lived in the Philippines since 1991 where he works.
b)She has two sons, the second applicant and an older son who has lived with his father in the Philippines since 1998.
c)The applicants had been in the Philippines from September 1998 until they came to Australia in January 2000.
d)She believed that she could not apply for refugee status in the Philippines.
e)The applicant's husband's parents and siblings were living in the United States, Austria and the Philippines except for one sister who remained in Punjab.
f)The police in India had arrested her husband four times on suspicion of being an AISSF member and of sheltering terrorists.
g)On the first occasion, in 1983, important people in the village had arranged his release in the evening of the day he was arrested.
h)On the second occasion, in 1984, he escaped while being taken to the police station after the vehicle in which he was travelling was attacked by extremists.
i)On the third occasion, he was about to be arrested at a temple but the priest persuaded the police that he was a good man and he was released.
j)On the fourth occasion in 1987, the applicant's husband was living in Delhi, and was beaten badly on suspicion of being a terrorist.
k)He returned to Punjab, and then left for Libya, Belgium and then the Philippines where he now has permanent residency.
l)Until the applicant left in 1998, the police still visited the applicant every few months asking where her husband and his family are (even though things have changed considerably and Punjab now has a Sikh government).
m)Her husband was not a member of the AISSF, though, when her solicitor queried the interpretation and then the applicant's answer, that her husband had been a member earlier but had later just helped them without being a former member.
n)AISSF members came to their house and they helped them so she and her husband were made members.
o)She had never heard of the author of the reference that she had submitted.
p)She did not know anything about the court case it referred to.
It is noted in its reasons the RRT indicates that it put to the applicant that the situation had changed markedly. Since her husband left Punjab 15 years previously a Sikh party was in government and police had been reined in and there were few terrorist incidents. In its decision it is clear that the RRT has accepted parts of the claim, namely, that the applicant's husband may have been a victim of inappropriate police treatment before he left India in 1988, but noted that the Sikh militancy in the Punjab had largely subsided and there had been a marked improvement in police practice in recent years. Other conclusions were also drawn by the RRT in relation to the extent and nature of the applicant's husband's involvement in political life. The RRT was not, however, convinced that the applicant or her husband had been members of the AISSF. It went on to make other findings in the alternative which do not need to be recited in this decision. The tribunal did not accept that the applicant's husband's family were mistreated because the police were looking for her husband given that he was, at most, a low‑profile activist. It otherwise did not accept the authenticity of the warrant of arrest. It gave no weight to the reference. It did not accept police visits to the applicant were as recent and as frequent as claimed or that any such visits were related to the applicant's husband's activities in the 1980s.
The grounds of review which are relied upon by the applicant are somewhat vague, though it is perhaps convenient to at least consider the grounds as argued in the contentions filed on behalf of the applicant. Errors are said to have occurred in circumstances where it is claimed that the tribunal had erroneously considered that it was bound by s.91S of the Migration Act 1958. It is pointed out by the respondent and I accept that the RRT did not refer to that provision, which is perhaps not surprising given that it and s.91R were not introduced into the act until after the decision was handed down. This is perhaps yet another example of where grounds have been relied upon obviously from another application and in this case those grounds are irrelevant.
It is further argued in the application that the RRT erred in not giving any or any proper consideration to the applicant's claim because her husband had been a member of the AISSF that she would suffer imprisonment and torture if she returned to India. The outline of the tribunal's findings that I have referred to briefly, on a proper consideration of its reasons clearly indicate that, as submitted by the respondent, the RRT indeed gave detailed and thorough consideration to that important issue.
It is not necessary for me to refer to what have been described by the respondent as a number of factual errors in the contentions filed on behalf of the applicant and nor is it appropriate for me to make any criticism of those errors save that certain matters referred to in the contentions clearly cannot be sustained.
It seems to me that in considering the claim as presented, the RRT in the present case has made critical findings of fact reasonably open to it in the consideration of the application. It has, in my view, made findings which cannot properly be regarded as findings where an error has occurred of a kind which would attract judicial review. Even if

I were required to apply the principles of jurisdictional error in this application, albeit that the privative clause does not apply, I am not inclined to find that there is any suggestion of jurisdictional error, nor am I inclined to find in this case that there is any error of any kind which would allow judicial review in an application relying upon s.39B of the Judiciary Act. It is clear that where the RRT makes findings of the kind which I have listed in this judgment, there is no need for it to make further findings as to whether or not the state is able to provide protection, which was another issue obliquely referred to in the contentions.
In the circumstances, having regard to its findings, it has, in my view, properly examined and considered the material and reached a conclusion open to it according to law. It follows therefore in the absence of any error that the application should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 March 2005