MZWIT v Minister for Immigration
[2005] FMCA 712
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIT v MINISTER FOR IMMIGRATION | [2005] FMCA 712 |
| MIGRATION – Refugee Review Tribunal – protection visa – handwriting analysis by Tribunal undesirable – no expert evidence – whether jurisdictional error. |
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
| Applicant: | MZWIT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 583 of 2004 |
| Delivered on: | 24 May 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 24 May 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr R. Knowles |
| 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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 583 of 2004
| MZWIT |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application filed 24 May 2004 the Applicant seeks review of a decision of the Refugee Review Tribunal (“the RRT”) made on
19 April 2000. The RRT in its decision affirmed a decision of the delegate of the Respondent made on 17 July 1997, refusing to grant to the Applicant a protection visa. The Applicant, apart from relying upon the application, has also relied upon Contentions of Fact and Law filed on 8 October 2004.
He has further sought to rely upon an affidavit in support of his application, which is the subject of objection. That affidavit, in brief terms, is from a President of a Municipal Council, seeking to confirm details concerning the Applicant's arrest, participation in political activities and what is referred to as "police still visiting" the Applicant's home, harassing his family members, and making other allegations. That affidavit appears to be dated 28 September 2004.
I shall deal with the issue of whether or not the Court should take that affidavit into account presently. Nevertheless, for the present purposes, I am prepared to accept the original of that affidavit provided by the Applicant, which provides a clearer version of the photocopy which had been attached to the Applicant's Contentions of Fact and Law which I referred to earlier.
Although the Applicant is unrepresented, he has had the benefit this day of the assistance of a friend, who has provided from time to time interpretation of what has occurred in Court. I am satisfied the Applicant otherwise has an understanding of the application, has received relevant documents, including the Court Book, and in particular has received the Respondent's Contentions of Fact and Law which were filed on 22 April 2005.
In the application filed on 24 May 2004, the Applicant seeks an order setting aside the decision. In his Contentions of Fact and Law, the Applicant in brief form refers to the issue of a subjective fear of persecution, and he otherwise expresses difficulties he had in presenting his claim to the RRT.
He claims he was unsure of what to say, that he is not an educated person but rather a tradesperson, and did not have the depth of judgment as to what might be meant as a subjective fear, and otherwise seeks to argue that the test was, in his words, "too harsh" and the conclusions drawn were incorrect and thus the decision of the RRT should be remitted.
The Applicant claimed that he had feared harm in India due to his association with Sikh militants and his support for their cause. He is an Indian citizen who is a Hindu from the Punjab region. He had arrived in Australia on 2 February 1997 and on 27 February 1997 applied for a protection visa. He grew up in the Punjab and despite not being a Sikh, claimed he had a lot of school friends and associates who were Sikhs. He travelled and worked abroad. He returned to the Punjab in January 1995.
It is claimed that upon returning to his home village, he came again in contact with many of his school friends, a number of whom had been Sikh militants known to the authorities. He claimed that his association with them was reported to the police by an informer.
As a result he claimed that police suspected him of being involved in the Sikh separatist movement and, further, that this led to his arrest while he was in the company of former school friends who were Sikh militants. The Applicant claimed that whilst being detained he was beaten by the police and as a consequence hospitalised.
In its reasons for decision the RRT sets out in some detail the claims and evidence of the Applicant. It recites the details in the application to the department by the applicant and further the exchange that occurred at the hearing between the Tribunal member and the Applicant in relation to key issues which form part of the Applicant's claim.
It is submitted by the Respondent that the claim of the Applicant's fear of persecution for a convention reason, namely imputed political opinion, centred on his alleged arrest by the police and his alleged beating and resultant hospitalisation.
In support of that claim the Applicant supplied the following documents:
a)a warrant of arrest from the judicial authorities;
b)a handwritten police warrant; and
c)a medical report from the hospital.
It is clear from the RRT's decision that having considered the oral evidence of the Applicant, the claims made in his application and the documentary evidence, that it ultimately rejected the Applicant's claims on what could be generally described as credibility grounds.
In its decision the Tribunal states, at page 96 of the Court Book, the following:
“The cumulative impact of the above concerns is such as to prevent me from being satisfied that the applicant had presented truthful claims, and that he could be relied upon as a witness of the truth. Accordingly, I am not satisfied that he has ever been the subject of authorities' adverse interest in the years prior to his departure for Australia. I am not satisfied that he has ever been arrested or mistreated on suspicion of having links with Sikh militants. I am satisfied that even though he is Hindi, he has both business and personal relations with Sikhs, a few of whom are militants; but in view of the foregoing, I am not satisfied that this has ever led to any official adverse interest in him. In addition,
I am satisfied from the country information discussed with him at the hearing that he does not fit the profile of someone who might be considered a high profile suspect; at best, his links with Sikh militancy is tenuous and in the current atmosphere in Punjab
I am not satisfied that it would lead to a real chance of persecution.”
In reaching its conclusion it is clear that apart from considering the oral evidence of the Applicant and his claimed links with militants, together with claimed arrests, that the RRT found that certain problems existed. It specifically however, and relevantly for the present purposes, made findings in relation to the documentary evidence.
The relevance of that finding arises from submissions made by the Applicant, which I take to be a submission in support of a claim of jurisdictional error, that in making a finding as to the authenticity or genuineness of a warrant, which is in the Court Book, that the RRT had simply made a wrong finding of fact, and indeed had made a finding in relation to handwriting of the Applicant compared with handwriting which appeared on a warrant to which I shall refer presently.
In order to assess that issue, it is appropriate to set out the following finding from the RRT, which appears at page 96 of the Court Book:
“There are also problems related to the applicant's documentary evidence. As for the purported warrant issued by the judicial authorities -
and it refers to the village -
I find it odd that the supposed official form used appears to be one that has been in use in 1980. I also have serious doubts that this warrant was legitimately obtained because the handwriting used to complete it strongly resembles the applicant's own handwriting. In addition, the document indicates that the applicant was to have been arrested for various designated offences and produced before the issuing court on or before
27 January 1997, several months before the episode in August 1997 and way off the mark as far as the claimed March 1995 episode is concerned. As for the supposed warrant issued by police, the copy of it presented to the Tribunal at the hearing bear no hallmarks whatsoever of an official document of that kind, such as a seal and standard format - it was on its face a handwritten document on a blank piece of paper. For these reasons, I am not satisfied that the purported warrants are genuine documents, and accordingly, I am not satisfied that they could be relied upon as genuine evidence of their contents.”
Counsel for the Respondent, by way of reply to submissions made by the Applicant concerning the veracity of the warrant of arrest document, drew the Court's attention to the copies of the warrant, which appear first at page 65 of the Court Book. It appears that a further copy was foreshadowed under cover of correspondence from the then Migration Agent of the Applicant, and dated 22 June 1998. That correspondence states:
“I am enclosing the Originals of documents sent to you previously.”
The original, a copy of which is reproduced in the Court Book, appears at page 68. The comparison used, purportedly, of the handwriting of the Applicant by the RRT when examining the warrant of arrest, appears at page 76 of the Court Book.
During the course of submissions made for and on behalf of the Respondent, I had indicated that there are dangers in Tribunals seeking to draw conclusions about handwriting in the absence of any handwriting expert evidence. Handwriting expert evidence itself is notoriously unreliable. For Tribunal members to embark upon what
I can only describe in this case as a somewhat amateurish and inappropriate attempt to compare handwriting is fraught with danger.
A simple comparison between the handwriting which purports to be that of the Applicant on page 76 of the Court Book, compared with the example of the warrant of arrest that is the original version which appears at page 68, shows substantive differences between the words "judge", and between the way in which the name of the Applicant has been written, and do not on the face of it reveal a similarity of a kind concluded by the Tribunal.
That of course is only my observation. Just as it is dangerous for a Tribunal to draw conclusions, it is equally dangerous for Courts, without the assistance of expert evidence, to draw conclusions; but
I must say for my part the comparison of that handwriting does not reveal or permit a conclusion to be drawn which would enable me to be satisfied that there is a similarity in the handwriting of the kind described by the Tribunal.
As I indicated, that somewhat amateurish approach to a comparison of handwriting is an extremely dangerous process to be undertaken by a Tribunal member in the absence of any assistance of experts. It is clear to me that in making its findings, that conclusion on the documentary evidence has been at least a factor which has been relied upon by the RRT in reaching its adverse conclusion against the Applicant.
The issue, however, for this Court to determine on an application of this kind, is whether that conclusion of itself is a sufficient basis upon which this Court should conclude that there has been 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.”
It is clear in applications of this kind that in certain instances even a wrong finding of fact will not of itself be a sufficient basis upon which this Court can set aside a decision and otherwise intervene by way of judicial review.
In the present case, a proper analysis of the conclusion drawn by the RRT in relation to the documentary evidence, aside from this amateurish assessment of what is described as the strong resemblance between the Applicant's handwriting and the handwriting on the warrant, is in any event, in my view, sufficient to provide a basis for a conclusion drawn by the RRT that in this instance it is not satisfied that this Applicant has a real chance of a convention based persecution on return to India. The totality of the evidence provides material upon which that conclusion can be properly based.
Therefore, from a practical point of view, it seems to me that despite my strong criticism of the fact‑finding process in relation to the document, there are other facts, including the oral evidence of the Applicant, assertions in relation to dates when events occurred and otherwise assertions in relation to his involvement in the activities which he claims form the basis upon which it should have been found that he had a real fear of persecution. In this instance the Tribunal's decision is not one which should attract judicial review, as I am not satisfied that the deficiency that I have highlighted of itself is sufficient in this instance to constitute jurisdictional error.
It is perhaps not surprising, however, that the Applicant is aggrieved by the decision. It is particularly not surprising when such an adverse conclusion has been drawn in such an unfortunate manner in relation to the documentary evidence. That alone however, in this instance in my view, as a matter of law is not sufficient to justify a conclusion that there has been jurisdictional error.
It is clear to me otherwise, that in the application and in the contentions, the Applicant has effectively sought merit review of this application. To do so does not provide this Court with a basis upon which it can find there has been jurisdictional error.
The Applicant has sought to rely upon the affidavit to which I referred earlier. In my view, as a matter of law, this Court should not permit the Applicant to rely upon that affidavit evidence. The affidavit evidence, which is clearly dated September 2004, relates to facts which are now said to exist, although I note the content of the affidavit is somewhat vague in terms of dates and specific events where it is alleged police are still visiting the house of the Applicant.
In any event, as a matter of law, in an application of this kind it is not appropriate that the Court should receive or permit the Applicant to rely upon that affidavit evidence. The Applicant had an adequate and appropriate opportunity to provide, as he did provide indeed, material to the RRT which as I have indicated, despite the criticism of its fact‑finding mission in one respect, has otherwise drawn a conclusion reasonably open to it as a matter of law, free of jurisdictional error.
For those reasons it follows that the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate: Brooke Evans
Date: 24 May 2005
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