MZWIQ v Minister for Immigration
[2005] FMCA 503
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIQ v MINISTER FOR IMMIGRATION | [2005] FMCA 503 |
| MIGRATION – Adjournment application refused – pro bono assistance and legal aid refused – significant delay – representation unlikely – protection visa – no error – application dismissed. |
| Judiciary Act 1903, s.39B Migration Act 1958, s.91S |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Immigration & Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 |
| Applicant: | MZWIQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 580 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 22 March 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 24 May 2004 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 580 of 2004
| MZWIQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Adjournment application
In this matter the applicant has sought an adjournment of the proceedings and has done so on the basis that he requires more time to obtain legal assistance. He has indicated that he has applied for pro bono assistance through what I take to be the appropriate bar association, and that has been refused. He further indicates that he only received the court book in this matter on 15 December 2004, despite the fact that there were orders made that the court book be filed on 19 November 2004. It is not in issue that the filing and service of the court book was out of time. He has indicated that upon receipt of the court book that apart from seeking aid from a pro bono barrister, has otherwise applied for legal aid and has not received a favourable response. From the bar table he has advised me that he has sought assistance from the Sri Lankan community. It is indicated that he has been advised as recently as last Sunday that some assistance would be provided, according to the president of the appropriate organisation.
The application for adjournment is opposed. The respondent has pointed out the chronology of events which briefly, in this matter, reveal that the Refugee Review Tribunal (the RRT) decision is dated
4 April 1997. Without reciting the further chronology in detail, it is clear that once that decision is made affirming a decision of a delegate to refuse a protection visa, the applicant joined in what is described as the Muin/Lie class action in the High Court and did so on or about
8 November 1999. The applicant filed an application in the High Court on 22 May 2003 which was remitted to the Federal Court. The Federal Court, as I understand it, dismissed the application on 30 April 2004. The current application before this court was filed on 24 May 2004. It was the subject of orders by a registrar made on 20 October 2004 which included listing the matter for hearing this day. Other orders were made in relation to the filing and serving of material, and I note it would appear that a further order was made by this court on 2 March 2005 altering the timetable. The applicant has not filed any contentions of fact and law, but rather at this stage relies upon the application as filed, though the respondent, I note, has filed contentions of fact and law on 16 March 2005 which have been served upon the applicant who has had time to consider those submissions.
The issue of whether or not to grant an adjournment for the purpose of enabling an applicant to obtain legal assistance is a matter within the discretion of the court. That discretion must be exercised judicially. In my view, having regard to the chronology of events, despite the best endeavours of the applicant, he has been unable to obtain appropriate legal assistance during the time available. The chronology of events indicates there has been, in my view, a significant time delay between the time of the original decision and the time of the applicant taking proceedings first to the High Court, then the Federal Court in this court. In my view he has had adequate opportunity to make arrangements, if they could be made, for legal representation, and I do not regard it as being in the interests of justice for there to be any further delay in these proceedings. It seems to me that where there is an absence of evidence in an appropriate form that there is some real prospect of representation being arranged in the foreseeable future, that it is inappropriate for the court in the exercise of its discretion to permit an adjournment, particularly in cases of this kind where the court is confronted with a decision of the RRT dated 4 April 1997. A period of almost eight years has elapsed since the decision was made and at least a period now of almost 10 or eleven months since the application was filed in this court. In the circumstances the application for the adjournment is refused.
Substantive application
The applicant is unrepresented, though assisted by an interpreter. He has not provided contentions of fact and law but has otherwise relied upon an application filed in this court on 24 May 2004. That application seeks judicial review which I take to be judicial review under s.39B of the Judiciary Act 1903 of a decision of the RRT dated 4 April 1997 whereby the RRT affirmed a decision of a delegate not to grant a protection visa. Perhaps not surprisingly, the applicant who is unrepresented, though relying upon the grounds of the application set out, has in fact otherwise sought to assert that he believes the RRT made some wrong findings of fact and has otherwise indicated he is not happy with the decision. Specifically he has made reference to certain findings of fact, which I accept in the context of the RRT decision may have led the RRT to draw a conclusion adverse to the applicant in terms of inconsistencies or what might be described as ‘implausibility’ of matters raised by the Applicant which led the RRT to make significant adverse findings as to the credibility of the applicant.
In circumstances of a case of this kind, for reasons advanced for and on behalf of the respondent, and having regard to the chronology of events, for this application it is correct to say that the privative clause does not apply. It may well be that in the circumstances the court is confined to those issues which may arise in the judicial review process relying entirely upon the normal principles to apply in relation to judicial review under section 39B of the Judiciary Act. I indicated, however, having regard to the fact that the applicant is unrepresented, that I would grant to him a certain latitude in terms of the way in which the application is pursued, and in general terms, I am prepared to consider the matter and have regard to normal principles including issues arising from any denial of natural justice and/or procedural fairness, and further whether the RRT gave consideration to the application as put by the applicant, both in the application form and in person before the RRT. I approach the task in that manner, though in the circumstances, out of an abundance of caution, I also have in mind the issue of jurisdictional error.
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).
The applicant is a Tamil Muslim from Sri Lanka. He was born on
23 March 1969. He arrived in Australia on 1 March 1996 on a student visa. He applied for a protection visa on 28 June 1996. That application was refused by a delegate of the respondent on 8 January 1997, and the applicant then on 31 January 1997 applied to the RRT for a review of the delegate's decision. The RRT, as indicated earlier, affirmed the delegate's decision by a decision dated 4 April 1997.
The applicant joined what is described as the Muin/Lie class action in the High Court on or about 8 November 1999. The applicant filed,
I understand, an application in the High Court on 22 May 2003. That application was remitted to the Federal Court on the same day, and it dismissed the application on 30 April 2004. I do not in this case have the advantage of access to certain documents arising from those proceedings, as no doubt they are set out in a separate file. I do not regard it as necessary for the determination of this application that I should view the other documents in other proceedings.
The application before this court contains a number of grounds. It is obvious from those grounds that some reliance is placed upon material which is clearly irrelevant. For example, there is a reference to s.91S of the Migration Act 1958 (the Act). It is clear that that section cannot be relevant in this application, given that in fact it commenced operation on 1 October 2001, which is approximately four years after the RRT decision was made. It is equally clear that other grounds referred to in the application would appear to have referred to another application and may well simply be a case of the applicant seeking to adopt from some form in another application grounds which he felt may have been supportive of this current application. Whilst I make no criticism of the applicant for embarking upon that course, it has led to a position where certain grounds are obviously untenable. It seems to me that there are in fact some grounds in the application which clearly cannot be pursued, and for the sake of convenience, I simply refer to those grounds relating to s.91R of the Act, and that includes grounds 1(a) and 1(c). Other references made in ground 1(b) to an error allegedly made by the RRT in interpreting the terms for reasons of membership of a social group without particulars. It is equally clear for reasons which will become apparent that that ground could not be sustained.
In general terms, there is also an issue raised, albeit incorrectly, by referring to the ‘Indian’ government rather than the ‘Sri Lankan’ government in ground 1(d) namely that the RRT failed to consider and determine whether the government was not able to provide protection for the applicant. It is clear to me that the RRT decided it was not satisfied the applicant was a person to whom Australia owed a duty for Convention reasons and hence that it was not necessary to further consider the issue of persecution. To that extent, for reasons which will become apparent, that ground will also fail.
Essentially that leaves two other grounds, but likewise those grounds in my view are not necessarily grounds which would succeed, that is ground 1(e) which refers to the failure to put country information in the possession or available to the RRT. Again for reasons which will become apparent, in relation to the way in which the RRT considered the application and material before it, leading it to conclude that it did not accept significant issues raised by the applicant, any issue concerning country information was not determinative in my view of the outcome of the decision, and that ground should also fail.
That leaves the more general ground 1(f) being a denial of procedural fairness or what might be described as a denial of natural justice, and although ground 1(f) as set out in the application incorrectly refers to the date of decision being 13 June 2000, I accept, and to the extent that I need to grant leave to amend, that that date should be 4 April 1997. It is clear from that error and from other matters raised in the grounds of appeal, including somewhat strangely a reference to a ‘court book’ not then in existence, that those grounds have been adapted, perhaps not too well, to support this application.
Essentially the applicant has sought to argue that he is not content or happy with the decision and has chosen to challenge in this application some findings of the RRT which he claims were incorrect findings of fact. It is clear to me on a proper reading of the RRT decision that it has in clear terms identified the arguments advanced for and on behalf of the applicant. It refers under the heading of ‘Written Claims’ to the documents then provided by the applicant. It is not necessary for me to recite in detail all of those matters summarised in paragraph 3 of the respondent's facts and contentions, as follows:-
“3.The applicant claimed in his protection visa application (CB39) that:
a.from 1969 until December 1995, he lived in Akurana;
b.he worked as a clerk at the Central Auditing Company from February 1992 to January 1995, and from January 1995 with Poly Place Plastic Company (CB30);
c.his career as a volley ball, cricket and basketball player was sabotaged for reasons of his ethnicity;
d.he audited the accounts of various Muslin institutions in the eastern province and the atrocities committed by the LTTE against Muslims created in his a pro-ethnic attitude;
e.the applicant’s uncle had a big business in Polonnaruwa and he asked the applicant to audit it for two months starting on 23 February 1992
f.the applicant’s employer gave the applicant permission to do the job on a contract basis;
g.the uncle showed the applicant a supply of weapons he kept for self-defence and for acting on concert with the Muslin home guards;
h.the uncle then left to visit Mecca in Saudi Arabia;
i.the uncle produced bicycles for supply through the Thimbulagala priest to residents of the Mahaweli project;
j.the covers on the bicycle bells had a tiger symbol;
k.the LTTE learned of this and demanded that the applicant pay a tax for using the tiger symbol;
l.the applicant objected and they then demanded that the applicant disclose the whereabouts of the weapons;
m.one of them had a gun and said that if he delayed it would cost him his life so the applicant gave them the key;
n.the Thimbulagala priest found out that the weapons were taken by the LTTE and he summoned the applicant;
o.the security forces asked the applicant to identify LTTE cadres;
p.the LTTE sent the applicant a message to meet in a secret place to enquire about the modus operandi of the Thimbulagala priest;
q.the Thimbulagala priest was shot dead by people believed to belong to the LTTE;
r.they had used bicycles that resembled those sold by the applicant’s uncle;
s.the applicant was arrested on the basis that he allegedly had known prior knowledge of the murder;
t.he was kept for four months in different places and tortured;
u.the applicant’s uncle returned from Mecca and bribed the authorities;
v.the applicant was released on condition that he left the country as soon as possible.”
Under the heading ‘Clarification of Claims and Further Claims’ made at the hearing, the RRT then further recites other details provided by the applicant to it at the hearing summarised by the Respondent in paragraph 4 of the contentions as follows:-
“4.At the hearing. The applicant said that (CB63):
a.he ran his uncle’s shop in Polonnaruwa from 1992 to 1995 while his uncle was in the Middle East;
b.he only did audit work in Akurana on a part time basis;
c.he took over the shop and ran it from 1993 to 1996 when his uncle returned from the Middle East
d.he never saw his uncle again after 1993;
e.he did not provide these details of his employment or residence in his application because he had been feeling stressed;
f.the weapons were taken in September 1994 though the applicant later said that they were taken in December 1994;
g.the home guards told the Thimbylagala Buddhist priest that the LTTE had taken the weapons;
h.the priest accused the applicant of helping the LTTE;
i.the priest informed the police and the applicant was arrested at the end of December 1994;
j.he was detained in a police camp in the jungle and forced to identify LTTE youths;
k.he was released at the end of January 1995;
l.on 26 May 1995, the priest was killed and the applicant was arrested the following day;
m.he was detained for four months in a jungle camp;
n.he was released on 19 September 1995 when his uncle returned from Saudi Arabia and paid a bribe;
o.the applicant was released on condition that he leave the country;
p.he applied to study in Australia in May 1995 and the letters on his visa file from two employers and his uncle are genuine;
q.the letters from the employers were given to him on the same day he requested them and his uncle’s letter was given two days after he requested it;
r.the applicant took the letters personally to the Australian High Commission.”
In the summary, reference is made to two issues which appear namely that the applicant never saw his uncle again after 1993, and that he did not provide these details of his employment or residence in his application because he had been feeling stressed. I should add that the weapons taken September 1994 the applicant later said they were taken in December 1994. To understand those conclusions, it is perhaps necessary to refer to extracts from the RRT decision as follows:-
“He found out his uncle stored weapons for the Muslim Homeguards in his warehouse in 1992. There were 20-30 shot guns which were legal arms supplied by the government, and 10-15 machine guns and a box of hand grenades which were illegal arms. In September 1994 the LTTE forced him to give them the weapons; he does not know how they became aware that the weapons were in the warehouse. He later said the weapons were taken in December 1994. The Homeguards told the Dimbulagala (Thimbulagala) Buddhist priest that the LTTE had taken the weapons and in December 1994 he went to see the priest who accused him of helping the Rigers.
…
He applied to study in Australia in May 1995 and the letters on his visa file from two employers and from his uncle are genuine. He was personally given the letters by his employers on the same day he requested them and he personally took them to the relevant section of the Australian Centre for Education/Australian High Commission. His uncle gave him a letter of sponsorship 2 days after he requested it.”
What appears from the RRT decision, however, under the headings of ‘Credibility’, ‘Residence and Employment’, ‘First Detention’ and ‘Second Detention’, is a consideration of the issues as raised by the applicant. It is clear to me on a proper reading of the RRT decision that it has dealt with what it perceived to be inconsistencies to the extent that the applicant now seeks to assert that those inconsistencies were of limited importance and/or were simply wrong. He now claims, for example, the uncle referred to as sponsoring him in 1995 was a different uncle, and otherwise asserts that the difference between September 1994 and December 1994 should not have been used as a basis in part for rejecting the applicant's case, or at least highlighted the inconsistencies. They are matters which could properly be regarded as disputes in relation to the fact finding of the RRT, which even if it had made a wrong finding of fact in matters of this kind, would not justify intervention by the court by way of judicial review.
It is clear to me that the RRT in its decision noted different accounts given by the applicant in relation to a number of issues. It was concerned about inconsistencies in relation to detention as referred to by the applicant, and although assertions were made as to detentions, the RRT found that it was not prepared to accept the detentions as asserted by the applicant. The RRT further found that it was inherently implausible that the applicant would have been released from detention on condition he leave the country immediately. It otherwise considered issues as raised by the applicant, and in my view, in considering those issues, it has done no more than to embark upon its fact finding mission as it was entitled to do based on the material then before it.
I cannot see any error in the reasoning process undertaken by the RRT which ultimately led it to conclude that the applicant did not face a real chance of persecution if he returns to Sri Lanka, and further that the applicant is not a refugee within the meaning of the convention. In this case there has been some consideration of country information, but that of itself, in the context of the RRT's findings on credibility and on the significant factual issues as presented, could not be regarded as determinative of the outcome of the decision.
Applying the relevant authorities to which I referred earlier, namely VAT, I cannot in the alternative see any basis upon which the court could conclude there has been jurisdictional error to the extent that
I need to embark upon that investigation. Further, in my view there is no basis upon which the court should review this decision pursuant to s.39B of the Judiciary Act 1903. I am satisfied that on a proper reading of the decision, there is no error disclosed. There has not been any denial of natural justice or procedural fairness. There has in fact been a finding reasonably open to the tribunal in relation to credibility that, as is often stated, is a matter ‘par excellence’ for a tribunal to determine (see Minister for Immigration & Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 at [67]). For those reasons, it follows, the application should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 March 2005
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