MZWIS v Minister for Immigration
[2005] FMCA 872
•25 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIS v MINISTER FOR IMMIGRATION | [2005] FMCA 872 |
| MIGRATION – Refugee Review Tribunal – protection visa – no jurisdictional error. |
| Migration Act 1958, ss. s. 91R, 91S, 432(2) |
| S1775/2003 v Refugee Review Tribunal (2004) FCA 872 Re Minister for Immigration and Multicultural Affairs; ex parte A (2001) 185 ALR 489 VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 |
| Applicant: | MZWIS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 582 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 25 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 25 May 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms J Macdonnell |
| 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 $4800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 582 of 2004
| MZWIS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 24 May 2004 seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated
24 February 1997. The Applicant appears before this Court unrepresented, though assisted by an Interpreter.
When the proceedings commenced the Applicant indicated that he is content to rely upon Contentions of Fact and Law filed by him on 10 February 2005, which I take to have been prepared with the assistance of a solicitor. He further indicated, however, that he required more time to prepare his case. I directed that the matter should proceed. The RRT decision was dated 24 February 1997.
I note from the Court file that orders were made in this matter on
20 October 2004 listing the hearing for 14 March 2005. I further note that on 20 October 2004 certain orders were made by a Registrar in relation to the filing and serving of an Amended Application, Supplementary Court Book and also Contentions of Fact and Law by the Applicant. Those steps should have been completed by mid‑February 2005. I further note that the matter was not in fact heard on 14 March 2005 but was the subject of an amended notice of listing dated 9 November 2004 whereby this matter was refixed for hearing on 25 May 2005. I am satisfied that the Applicant had also received the Court Book and the Respondent's Contentions of Fact and Law on
18 March and 12 April 2005 respectively. The Applicant handed to the Court an invoice for fees charged by a solicitor Mr Sabelberg, dated
8 February 2005. It would be consistent with that solicitor assisting in the preparation of the Contentions of Fact and Law filed on
10 February 2005. The chronology of events satisfied me that in all the circumstances as a matter of procedural fairness it was appropriate that the matter should proceed this day.
The application filed by the Applicant and relied upon in these proceedings, as indicated, seeks review of a decision of the RRT dated 24 February 1997.
By way of background, it is noted that the Applicant is a national of India. He arrived in Australia on 9 September 1995 on a Visitor Visa. On 1 November 1995 the Applicant lodged an application for a Protection Visa. On 26 June 1996 a delegate of the Minister refused to grant the Applicant a Protection Visa. The Applicant then applied on 24 July 1996 to the RRT to review the delegate's decision. As indicated, the RRT affirmed the decision of the delegate not to grant the Applicant a Protection Visa.
On 2 June 2000 the Applicant joined what is described as the ‘Muin Lie’ class action in the High Court of Australia. He subsequently made application to that Court for an order nisi. The matter was remitted to the Federal Court of Australia as Applicant S1036/2003 and became known as Federal Court proceedings N2307/2003. I note that His Honour Emmett J on 30 April 2004 refused the Applicant's application for an order nisi together with a number of other applications and that this matter is reported as S1775/2003 v Refugee Review Tribunal (2004) FCA 872.
As indicated earlier, the application before this Court was filed on 24 May 2004. The application relies upon a number of grounds. Those grounds have been satisfactorily set out in the Respondent's Contentions, though it is noted that one of the grounds which had otherwise been referred to is now not pursued. Specifically, the application for review alleges that the RRT:
“(a)failed to consider relevant material, being the substantive issue raised by him because it erred in its interpretation of s.36(2), 91R and Part 7 of the Act;
(b)failed to properly consider his contention that he was liable to persecution by his brother‑in‑law, a powerful member of the Indian authorities, because it erred in its interpretation of "for reasons of… membership of a particular social group";
(c)erred in interpreting s.91S of the Act as a result of which it erroneously considered that 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;
(d)failed to put to him country information “in its possession or available to it”;
(e)considered submissions made by the Secretary of the DIMIA made pursuant to s.432(2) of the Act and did not disclose that fact to the Applicant;
(f)had denied him procedural fairness.”
Before this Court, when counsel for the Respondent sought to make submissions, the Applicant indicated that he no longer wished to rely upon and/or pursue ground (b) referred to above.
In relation to grounds (a) and (c), I accept the submissions made for and on behalf of the Respondent that those grounds must fail as ss.91R and 91S of the Migration Act 1958 (“the Act”) had not been enacted at the time of the RRT decision.
In relation to the ground of review based on an allegation of the secretary having made submissions pursuant to s.432(2) of the Act which were not disclosed to the Applicant, I accept the Respondent's submission that this ground should fail as the Applicant has not provided any evidence of such submissions having been made.
Reference is made to the judgment of Emmett J in S1775/2003 where at paragraph 3 the Court states:
“3. That the same ground in the Applicant’s previous application unsupported by any evidence did not raise an arguable case for the grant of any relief”.
It is noted, however, that in that judgment the same ground was referred to unsupported by any evidence and His Honour concluded did not raise an arguable case for the grant of any relief.
The claimed failure of the RRT to disclose country information in its possession or available to it, in my view, should also fail. Common law applicable at the time, according to the Respondent's Submissions which on this point I accept, on a decision‑maker to disclose information was limited to adverse information which was before the decision‑maker. It did not extend to information not adverse or information to which the decision‑maker did not have any regard. Selection of country information was then a matter for the RRT. Significantly in the present case, I apply and adopt the decision of Finkelstein J in the matter of Re Minister for Immigration and Multicultural Affairs; ex parte A (2001) 185 ALR 489 at pages 500 to 501, and in particular paragraph 18 of His Honour's decision as follows:
“[18]In his rejection of this complaint, French J accepted that the tribunal had not specifically referred to the complaint of torture. However, he concluded that “in substance” the tribunal's reasoning had sufficiently revealed that it had rejected the claim that the applicant had been imprisoned for six months and tortured in 1988. Upon this footing, his Honour concluded that the tribunal was “not required to make a finding as to his claim to have been tortured”. He rejected the assertion that that claim had been overlooked or forgotten. Accordingly, he rejected the assertion that the tribunal had failed to make a finding on a “material” fact. All other complaints were rejected. The application was dismissed.”
In this case there is no evidence as to how the Applicant may have been deprived of the opportunity of making submissions which might have persuaded the RRT to act differently. The failure to explain how he had been adversely affected is relevant to the present inquiry and
I otherwise apply the decision of his Honour Finkelstein J in the case to which I have just referred.
The suggestion that there has been a denial of procedural fairness is one which normally is the subject of particulars. In this case there is a noticeable absence of particulars in support of this ground. In the absence of any particulars and in the light of the previous finding by Emmett J referred to earlier in this decision that there did not appear to be particulars of a kind which would lead to a conclusion that there is an arguable case for relief, it is my conclusion that this ground should also fail.
The Contentions of Fact and Law which have been filed by the Applicant and upon which he has sought to rely can properly be characterised, in my view, as an attempt to re-agitate the facts. There is no doubt that this Applicant is aggrieved by the RRT's decision. He further specifically claims to be aggrieved by the RRT's acceptance of information that conditions had changed in the Punjab and in not placing greater weight on past instances of imprisonment or torture against him.
It is perhaps significant to note that in making its findings of fact, which in my view were reasonably open to it, the RRT on a proper reading of its decision had indeed addressed many of the issues raised by the Applicant in his claim. It is not necessary for me to repeat and recite the reasoning of the RRT in detail but it is noted that at page 80 of the Court Book the RRT states the following:
“The Applicant has not engaged in militant activities. The circumstances of his arrests, the last of which was made in 1990, and of his subsequent release indicate that after his release in 1990 he was not truly regarded by the police as being involved in terrorism, for reasons set out above.”
The reasons set out above are part of detailed reasons analysing the chronology of events against the backdrop of a claim made before the RRT by the Applicant. The RRT goes on to state:
“During the time he lived outside his state, from the end of 1992, the Applicant was not troubled by the authorities though it may be that he lived inconspicuously.”
In all the circumstances the Tribunal concluded that there is no real chance that the Applicant would be persecuted in Punjab state or pursued beyond its boundaries and persecuted were he to return to India. Those conclusions of the RRT on a proper reading of its decision and having regard to the appropriate authorities do not, in my view, disclose 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.”
Applying the authorities referred to in that decision, it is my view, that in this application there is no evidence of jurisdictional error and there are no grounds upon which this Court should interfere with the decision of the RRT. There is no basis upon which the application for judicial review can succeed. It follows for the reasons given that 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: Brooke Evans
Date: 25 May 2005
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