MZWIF v Minister for Immigration

[2005] FMCA 823

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIF v MINISTER FOR IMMIGRATION [2005] FMCA 823

MIGRATION – Refugee Review Tribunal – application for judicial review – no error of law.

Migration Act 1958 (Cth), ss.36(2), 91R, 91S, 420(2)(a), 423(2), 424(1), Part 7.
Judiciary Act 1903 (Cth), s.39B

SHJB v Minister for Immigration [2003] FCA 502
NAHI v Minister for Immigration [2004] FCAFC 10
Woods v Migration Agents Registration Authority [2004] FCA 1622
S1775/2003 v Refugee Review Tribunal [2004] FCA 872

Applicant: MZWIF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 419 of 2004

Judgment of: Riethmuller FM

Hearing date: 3 May 2005

Delivered at: Melbourne

Delivered on: 3 May 2005

REPRESENTATION

Counsel for the Applicant: The applicants appeared on their own behalf

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr Mosley

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the applicant’s application filed 21 May 2005 be dismissed.

2. That the applicant pay the minister's costs, fixed at $6500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 571 of 2004

MZWIF

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal made on 13 June 2000 confirming a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse the grant of a protection visa. 

2. The applicants are citizens of India.  The applicant husband came to Australia on 10 March 1993 and returned to India in December 1995, re-entering Australia on 21 February 1996.  His wife and children arrived on 29 April 1998. 

3. The applicant lodged a protection visa application on 27 May 1998 with the Department of Immigration and Multicultural Affairs. 

4. The applicant says that he cannot return to India as he fears persecution at the hands of Hindu fundamentalists and Muslim fundamentalists as a result of he and his family being Christians.

5. On 10 June 1998 the delegate of the minister refused to grant protection visas and the applicants applied for a review of that decision by the RRT on 9 December 1998. 

6. The applicants joined a class action that was pending in the High Court on 19 July 2000 which was ultimately unsuccessful.  On 30 May 2003 they sought a constitutional writ in the High Court which application was remitted to the Federal Court.  On 30 April 2004 Emmett J of the Federal Court refused their application for an order nisi.  The applicant then made the further application which is before me.

7. The substance of the Tribunal's decision is well-summarised in the outline of argument by counsel for the respondent in the following terms:

   15.…The Tribunal accepted the applicant husband’s account of events and in particular that he was subjected to harassment by some of his Muslim students at a Catholic High School where he worked in Hyderabad in the state of Andhra Pradesh, during the 1987-88 academic year. However, it found that during his last 5 years in India, before coming to Australia in March 1993, he had worked at a school attached to the University of Hyderabad and made no claim that he had been subjected to harassment or harm whilst teaching there. It found significantly that he was not threatened or harmed by Muslims after he resigned in 1988. Moreover, it found that he was not harmed when he returned to India in 1995/96. The Tribunal was satisfied that he was not at risk of harm when he most recently departed India in 1996.

   16.The Tribunal found that the applicant wife and child were not at risk of persecution when they left India in 1998. The Tribunal accepted that there was another attack on Catholic High Schools by Muslims in 1997, specifically over the content of a school textbook. It was apparent by material submitted by the applicants that the hostility was directed at the school over that content. It noted that the applicant wife and child had lived at the one address in Hyderabad from 1994 to 1998 and had not been threatened or harmed save for the threats made soon after the heightened tensions following the 1997 High School incident. No further threats were made and no action was taken on the threats and they continued to reside there for a further 8 months before coming to Australia. It was satisfied that if Muslims wanted to harm them they could have, but did not. The Tribunal found that both the 1987 and 1997 High School incidents were of a highly localised nature and did not signify any significant hostility between Muslims and Roman Catholics generally in Hyderabad. The Tribunal placed weight upon the applicant wife’s willingness to remain there and that she could have moved away if she wished; in particular she had close relatives outside Hyderabad. The Tribunal considered that indicative of confidence on her part that the violence was short-lived and that they were not at serious risk of harm. The Tribunal found its view consistent with the evidence in the form of a press report provided by the applicants, that following the attack on the High School, there were arrests made of assailants and other local schools had closed in protest for a week. The Tribunal considered this demonstrated both a reasonably assertive response to the violence, and its short-lived duration.

   17.As to the applicants fear of harm from fundamentalist Hindus, there was no evidence that the applicants had ever been targeted by Hindus. The Tribunal accepted that there was evidence of reports of assaults amounting to persecution, on Christians by Hindu fundamentalists and that the applicants were consequently fearful of harm. However, it was not satisfied that merely being a Christian, or a Roman Catholic in particular, was sufficient to give rise to a well-founded fear of persecution for reason of religion. In so finding it noted that there was no state restriction on being a Christian and that many senior figures, including the President were Christian. It noted that attacks by Hindu extremists were directed primarily at those involved in evangelical activities and that Roman Catholics were the least likely to be targeted. It noted that the incidence of attacks was not nationwide but largely occurred in the state of Gujarat, with a small number in other states, and that the overall incidence of violence was low. It noted that most of the violent incidents involving attacks on Christians in the period to February 1999 occurred in Gujarat and information did not disclose any attacks on Christians churches in Adhara Pradesh. It was not satisfied that Hindu extremism was being expressed through serious harassment of Christians in Andraha Pradesh. The Tribunal found that if the applicant husband resumed employment as a teacher there was only a remote chance he would be subjected to harm amounting to persecution by extremists. The Tribunal further concluded that the chance of persecution to the applicant wife due to her past links with the now defunct Catholic women’s group for which she had done volunteer work, was remote. In part because there was no evidence that its ex-volunteers were currently subject to threats and because the group was defunct in any event.

8. The significant finding of the tribunal can be found on page 17 of the tribunal decision, which is to the following effect:

   Of the applicants fear of harm by Hindu fundamentalists, I have considered whether there is a real chance it would occur if they returned to Andhra Pradesh.  Human Rights Watch, in 1999 Chapter 1 summary, states that during the 13 months to February 1999 there were reported to be 116 incidents of attacks on Christians across the country, of which 94 occurred in Gujarat.  Andhra Pradesh was identified in that report as one of 13 other regions in which incidents had occurred.  These figures indicate that 81 per cent of the violent incidents occurred in Gujarat and that the number of reported incidents in Andhra Pradesh and the other states was small. 

   Consistent with this view is the more recent US State Department report for 1999, which lists attacks on Christian churches in various states during that year.  Andhra Pradesh is not among them.  I accept there may have been occasional incidents which were not reported, however the available evidence does not suggest that Andhra Pradesh is a state in which Hindu extremism is being expressed through serious harassment of Christians. 

   
   

   I am satisfied that this is the case.

9. Ultimately the tribunal concluded that it was not satisfied that the applicant or his wife had a fear of convention-based persecution that was well-founded.  As a result the application was dismissed.  

10. The applicants' grounds of application before me are of a pro forma type regularly seen in the court, and in the following terms:

    1.The RRT erred in law and thereby did not act within jurisdiction in making the decision because

    (a)The RRT erred in law in failing properly to interpret or apply the law including section 36(2), section 91R(1) and Part 7 of the Act in determining whether the applicant had well-founded fear of future persecution, and thereby the Tribunal failed to consider and determine relevant material being the substantive issues raised by the evidence presented by the applicants in support of their fear of future persecution or death.

    (b)The RRT erred in interpreting the term “for reasons of …membership of a particular social group” in the definition of a refugee under the Refugees Convention incorporated by section 36(2) of the Act, and as a consequence by not giving any or any proper consideration to the applicants contention that because they were Christian (Roman Catholics) in an area populated by both Muslim Extremists and Hindu Fundamentalists who attacked Christians individually or churches in the past, they would be in danger of death if they returned to India.

    Nor did the RRT give proper consideration to pass (sic) instances of threats or intimidation directed towards the applicants.

    (c)The RRT erred in interpreting section 91S of the Act, as a result of which it erroneously considered it “must find that the Applicants were not persons who had a well-founded fear of persecution for reasons stated in the Refugees convention.”

    (d)The RRT failed to put to the Applicants country information in its possession or available to it.

    (e)The RRT considered submissions made by the secretary of DIMIA made pursuant to S423(2) of the Migration Act 1958.

    (f)These submissions were not brought to the applicants attention nor were they invited to comment on them.

    (g)The RRT denied the applicants procedural fairness in its decision of the 13^th June 2000.

11. It is appropriate that I deal with each of the grounds even though a number of them were clearly not pursued in the outline of argument, given that the outline of argument does not appear to have been prepared by a lawyer, nor does it squarely addresses any of the issues that appear to be raised in the application.

12. The first ground relied upon is an allegation that the tribunal did not properly interpret sections 36, 91R, and Part 7 of the Act. Having reviewed the tribunal's reasons at pages 1 to 3 of their decision where they set out their understanding of the relevant law under section 36,

    
    

    I can find no error in their recounting of the law at the time that they made the decision. Section 91R does not appear to be relevant as it does not seem to have been enacted at that time. In the circumstances there appears to be no basis for this ground.

13. Ground (b) in substance seeks a review of the finding of the tribunal on the facts.  It is not said that the tribunal overlooked any significant factual claim nor failed to properly consider all of the evidence before it.  The substance of the argument is that the tribunal ought not to have relied upon the country information in order to be satisfied that there was no real risk of persecution.  The principles applicable are well‑known and well-summarised by Selway J in SHJB v Minister for Immigration [2003] FCA 502 at paragraph 16, where his Honour stated:

    16. I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

    ‘A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.’

    This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39]-[53], [100]-[103], [122]-[147], [183]-[194]. However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal. Plainly there was material before it that justified its conclusion. Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion. It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it.

14. The question of reliance upon the country information was considered specifically in NAHI v Minister for Immigration [2004] FCAFC 10 by Gray, Tamberlin and Lander JJ in a joint judgment where their Honours state at paragraph 11:

    11. The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

15. I also note, as their Honours set out at paragraph 15 of their judgment in NAHI, that it is appropriate for the tribunal to consider subsequent events which may have occurred after the person has left the country.  At paragraph 15 their Honours said:

    The appellants also attempted to rely on developments in relation to the peace process in Sri Lanka since the Tribunal’s decision, to demonstrate that the peace process was more likely to fail than the Tribunal found. They cited the passage from the judgment of Toohey J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 406, where his Honour said:

    ‘If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration. In an appropriate case the change (such as a new government) may remove the basis for a well-founded fear of persecution.’

    Toohey J was referring to changes occurring between the departure of an applicant for a protection visa from his or her country of nationality and the decision on the merits of the application for the visa. His Honour was not suggesting that a decision on the merits, made on material available at the time of that decision, could be undone because subsequent events did not unfold according to the expectations of the decision-maker. The appellants’ submission is tantamount to saying that the Tribunal was wrong on the facts, and the Court should correct its factual error. It would be beyond the power of the Court, in a case in which relief is sought pursuant to s 39B of the Judiciary Act, to perform such a function. The Tribunal was alert to the fact that its function was to assess whether there was a ‘real chance’ of persecution of the appellants in Sri Lanka. It did not make any error as to the meaning or nature of the ‘real chance’ test. Subsequent events cannot be used to falsify its finding. The Court does not have the power to say that the Tribunal’s finding that the risk of persecution of the appellants was too low to constitute a real chance was wrong.

    In his oral submissions, the first appellant referred to the withdrawal of the Norwegian Government from the peace process in Sri Lanka, and to the political differences that have emerged between the President and the Prime Minister of Sri Lanka, since the Tribunal made its decision. He was attempting to persuade the Court to re-decide the question of entitlement to a protection visa, on material not available to the Tribunal. In a proceeding of this kind, the Court does not have that power.

16. I also have regard to the restatement of the principle by Crennan J in Woods v Migration Agents Registration Authority [2004] FCA 1622 at paragraph 55 and 56 where her Honour stated:

    55 The reasons of an administrative decision-maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272. Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152]. Where a tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J. It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62]. This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal. It is not a jurisdictional error for an administrative decision-maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing).

    56 A Tribunal is not required to set out in its reasons a line-by-line refutation of the evidence led by the applicant which is contrary to its findings or conclusions: see Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 at 422-423 per McHugh J. The Tribunal had regard to the evidence and made findings of fact, which were open to it and were not perverse. The Tribunal undertook the task of determining the facts without error in accordance with the principles referred to in the abovementioned authorities.

1. In the circumstances of this case it is clear that the tribunal had regard to the material put forward by the applicant and the country information.  The tribunal has carefully analysed both and reached its conclusion on the facts.  It is not appropriate for me to review the merits of a case on judicial review.  I therefore find that this ground is not a basis for finding that there was jurisdictional error.

2. The next ground was by reference to section 91S of the Act. This makes it clear that the applicant is relying upon a pro forma application, as section 91S was not in force at the time of the decision.

3. The next ground is an allegation that the RRT failed to put to the applicants country information in its possession or available to it.  It is clear that there is no obligation to put all of the country information to the applicants in a case of this type.

4. The next ground is an allegation that the RRT considered submissions by the secretary of the department under section 423 of the Act.  There is nothing in any of the material to indicate that any such submissions were made by the secretary: indeed it appears clear that the lack of any evidence indicating that there were any submissions was the reason that Emmett J dismissed the first application in a lengthy judgment dealing with a large number of applications, reported as S1775/2003 v Refugee Review Tribunal [2004] FCA 872, the applicant being case number N2315.

5. The next ground is further reliant upon the same issue, and must be refused for the same reasons.

6. The final ground is that the applicants say that they were denied procedural fairness.  They are not able to particularise any denial of procedural fairness.  When questioned today by me, the applicant could point to no event or circumstance in the hearing by which he was able to indicate that he was not heard or listened to, or not given an opportunity to put his case. 

7. In the circumstances I find that no arguable ground has been shown and therefore dismiss the application by the applicant.

8. In this case the applicant opposes a costs order on the basis that he is unable to afford to meet the costs of the Minister.  The representatives of the minister seek the sum of $6500.  I find that the sum sought is reasonable, having regard to the Federal Magistrates Court scale and the work that appears to have been undertaken in this case. 

9. It was a matter of some concern to me that the applicant may have been led to believe that he had an arguable case by a third party, given that he has utilised a pro forma form of application that is seen far too often in this court and that the contentions of fact and law appear to have been drawn by someone with a greater understanding of the subject matter of migration law than the applicant, although clearly without any proper understanding of the law.

10. The applicant, however, says that he was simply given copies of these documents by friends.  Therefore there does not appear to be a third party who has been giving inappropriate advice or prompting this litigation.  It is a case where the applicant is simply seeking to stay in the country and hoping that he would achieve a merits review in this court, when clearly that was not available in this court.

11. These circumstances are not sufficient, in my view, to displace the usual rule that the successful party in litigation ought to have their costs. The Minister has been put to costs in litigation in which the applicant has been unsuccessful.  In the circumstances I order that the applicant pay the minister's costs, fixed at $6500.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: