MZWIR v Minister for Immigration
[2005] FMCA 419
•21 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIR v MINISTER FOR IMMIGRATION | [2005] FMCA 419 |
| MIGRATION – Protection visa – no jurisdictional error. |
| Migration Act 1958, ss.91R, 423(2), 424A |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 |
| Applicant: | MZWIR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 581 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr W.S. Mosley |
| 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 581 of 2004
| MZWIR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application, the applicant seeks review of a decision of the Refugee Review Tribunal (the RRT) dated 28 July 2000 where it had affirmed a decision not to grant the applicant a protection visa. The application before this court was filed on 24 May 2004.
By way of background, it is noted that the applicant is a male citizen of India, born 14 May 1960. He arrived in Australia on 22 October 1997. As the holder then of a visitor visa, he travelled on an Indian passport issued on 15 October 1991. He applied for a protection visa on 14 November 1997.
The claims of the applicant are set out in the court book, and in particular appear in a statement annexed to the application dated 14 November 1997. The application was the subject of an adverse decision by a delegate of the respondent who determined that the applicant was not a person to whom Australia had protection obligations. That decision was made on 3 December 1997 and the applicant then on 12 December 1997 applied for review of the delegate's decision.
The RRT conducted a hearing on 3 November 1999, and as I indicated, ultimately affirmed the delegate's decision by a decision dated 28 July 2000.
The claim of the applicant set out in the attached statement to the application and as indicated in the RRT's decision involves an assertion by the applicant that he has a well-founded fear of persecution in India. I should add that before this court, the applicant appears unrepresented, though with the assistance of an interpreter. He has sought to rely upon the application and the grounds set out in that application and has otherwise sought to rely upon two further documents, one purporting to give an update in relation to the current circumstances in India, and another from the applicant himself, likewise referring to the risk for him if he returns to India. It is otherwise asserted from the bar table that if he were to return, he has a strong belief that he may be killed.
The material sought to be relied upon by the applicant is not material which I received by way of exhibit or otherwise receive into evidence, but I am prepared to the extent that I am able to at least have regard to that material insofar as it relates to issues of concern to the applicant.
I should indicate, however, that both documents do not as a matter of law advance the application any further and as a matter of law should not otherwise be received or acted upon by the court. Clearly they relate to events not then relevant to the applicant when he was before the RRT and cannot have a bearing on the decision I make in this matter, given it is an application seeking judicial review of the RRT decision.
Essentially, the applicant had claimed that he could not return to India because he believed he would be killed by the authorities. His parents, he claimed, were killed by Hindu militants in 1984. He claimed he was a member of the Sikh Students Federation (SSF) and the Freedom Fighters (FF). He claimed that he delivered important documents and sometimes ammunition for the FF. He claimed that while living in Lebanon from 1991 to 1997 he provided money to the FF for ammunition and in aid of Sikh families. He gave the SSF food and later on, money. He claimed that on 28 September 1997 he had been arrested and detained, and only released after a bribe was paid. He further claimed that he was wanted by the authorities.
In response to country information that indicated that he would not be at risk, he indicated that the Sikh militancy is ongoing and that militants or terrorists continued to be captured, and anyone with any link to them remains at risk from the authorities. In response to country information, the persons who were sought by the authorities could not depart at airports on their own passports, as had the applicant. He claimed that perhaps his nickname and not his name was on a list and that security systems were not computerised. Before this court, he has further added that he does not believe that he had done anything wrong in India but felt that the authorities may have interpreted his conduct as being conduct of a kind which should attract their attention.
It is clear to me that in considering this application there is little doubt that the application and the grounds for the application have been drawn very broadly and indeed would appear, given the applicant is unrepresented, to have been adapted from another application which may have little or no relevance to the current application. The difficulty is compounded by the fact that despite orders being made on 20 October 2004 that the applicant have leave to file and serve an amended application and should do so by 20 January 2005, together with contentions of fact and law, the applicant has failed to do so. Being unrepresented, it is not surprising that he has been unable to assist the court by way of further submissions.
The grounds in the application state the following, however:
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) and 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 applicant in support of his fear of future persecution;
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 applicant's contention that because of membership of a particular social group, in this case his family, he was liable to persecution by his brother-in-law, a powerful member of the Indian authorities;
c)The RRT erred in interpreting section 91S of the act as a result of which it erroneously considered it "must find that the applicant is not a person who has a well-founded fear of persecution for reasons stated in the Refugee Convention" (court book page 81.4);
d)The RRT failed to put to the applicant country information in its possession or available to it;
e)The RRT considered submissions made by the secretary of DIMIA made pursuant to section 423(2) of the Migration Act 1958 and did not disclose that to applicant;
f)The RRT denied the applicant procedural fairness in its decision of 28 July 2000.
It is clear to me on a reading of those grounds that a number of them are clearly irrelevant and inappropriate to this application. Specifically it is clear that reliance upon s.91R cannot possibly succeed in this application, given that it received assent on 27 September 2001 and came into force on 1 October 2001, which as submitted by the respondent, was over a year after the RRT decision which in this instance was handed down on 15 August 2000.
It seems equally clear to me on a proper reading of the statement annexed to the application that ground 1(b) could also not be sustained on the material as it does not appear, at least in part, that there was any reference in relation to any brother-in-law being a powerful member of the Indian authorities. That ground, together with then ground 1(c) would more properly be appropriate to other applications and there might have been what could be described as a ‘cut and paste’ approach to this application. That is of course regrettable, though perhaps understandable for unrepresented applicants to simply draw on other, albeit misleading precedent material, in support of the application.
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.”
In applying the relevant authorities to this application, and in considering the grounds relied upon, it is noted that apart from dealing with grounds 1(a) and 1(b) that the respondent correctly contends that ground 1(c), for the same reasons that apply to ground 1(a), cannot possibly succeed.
In relation to ground 1(d) where it is asserted that the RRT failed to put to the applicant, available country information in its possession it is clear that the RRT decision put the information to the Applicant. It is also clear that in this case, as submitted by the respondent, that apart from not failing to put the relevant country information to the applicant, it is further submitted, and I accept, that the information upon which the RRT relied and the responses to it, were clearly recorded. It is submitted and I accept that there is no scope for the operation of s.424A of the Migration Act 1958, and I accept and apply the decision of Tamberlin J in the case referred to by the respondent of SZASX v Minister for Immigration & Multicultural & IndigenousAffairs (2005) FCA 68 (8 February 2005) at paragraph 14 as follows:-
“14 I have been referred to two recent decisions of the Court. In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, it was decided that, in order for the country information to come within the requirements of s 424A of the Act, the country information must to be specific to the appellant. This decision was recently followed by Allsop J in SZAOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1473.”
Accordingly, ground 1(d) fails.
In relation to ground 1(e) it is submitted by the respondent that there is no evidence to support the applicant's assertion that the RRT had regard to any written argument by the secretary of the department pursuant to s.423(2) of the Migration Act 1958. That again appears to be clearly the case in the present application and accordingly ground 1(e) should fail.
That leaves ground 1(f) which relies upon the broad assertion that there has been a denial of procedural fairness. In my view, applying the authorities to which I have referred in VAT and considering the appropriate principles to be applied in determining whether there is jurisdictional error, including, relevantly for the present purposes, whether there has been a denial of procedural fairness, I cannot see anything in the material before me, including the reasoning of the tribunal, which provide any basis upon which this ground could succeed. There have been no particulars supplied in support of the ground and in any event it seems clear to me on a proper reading of the RRT decision that it has indeed explored each and every one of the matters relied upon by the applicant in some detail.
Further, it seems clear to me that if the findings of the RRT are considered in some detail, it has made a very clear and strong adverse finding in relation to the claims made by the applicant. Those claims were considered and indeed rejected by the RRT in its reasoning process. Although it accepted that the applicant's parents had been killed in 1984 by militants, it was not satisfied that gave rise to a well‑founded fear of persecution. It rejected other claims by the applicant. It was not satisfied he had a well‑founded fear of persecution for a convention reason. Specifically it made adverse findings against the applicant's credit. Those findings included findings that he had not presented genuine material claims and could not be relied upon as a witness of truth.
Further findings were made by it which are adequately and appropriately summarised in the respondent's submissions as follows:
1)He concocted his claim that he had become an enemy of the government and that his name had appeared in the newspaper several times. The claim was inconsistent with, inter alia, his ability to enter and leave India on four or five occasions without any difficulty or problem with the authorities.
2)His evidence regarding his membership and involvement with the SSF and the so‑called FF was unconvincing.
3)His evidence regarding the consequences of his involvement in the SSF and the FF was inconsistent. Particular reference was made to a significant discrepancy between his evidence and certain supporting documents he presented as to the number of times he had been arrested. He maintained it was only once but the documents he had presented referred to several times. It doubted the authenticity of those documents.
4)He was not a witness of truth and it was not satisfied he had ever been a member of or involved with the FF or SSF or that he had ever been arrested for the reasons claimed.
Perhaps somewhat ironically, it seemed to me that the thrust of what the applicant had indicated to this court today in a sense supported those findings at least to the extent of the involvement, active or otherwise, of the applicant in the FF or the SSF in a way which would attract adverse attention from the authorities. Nevertheless, for the present purposes it is sufficient to note that the RRT has embarked upon its task which it is entitled to pursue, that is, an assessment of credibility (see NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167).
Applying the relevant authorities to the present application and having regard to those findings which in my view are findings open to the RRT, I cannot on that material detect any basis upon which it could be properly claimed there has been a denial of procedural fairness, nor am I satisfied that there is any material which would satisfy me that there has been jurisdictional error of a kind which would attract judicial intervention. For those reasons it follows the application should be dismissed with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 March 2005
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