MZWJC v Minister for Immigration
[2005] FMCA 1610
•15 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1610 |
| MIGRATION – Visa – protection visa – application for review of decision by the Refugee Review Tribunal – applicant claimed that the Tribunal’s identity finding was erroneous – applicant claimed he had multiple pseudonyms and that the Tribunal’s identity finding infected its whole decision – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 91R, 474 |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) |
| Applicant: | MZWJC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 598 of 2004 |
| Judgment of: | Connolly FM |
| Hearing dates: | 5 May 2005 & 9 August 2005 |
| Date of Last Submission: | 9 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.A. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First & Second Respondents: | Ms H. Riley |
| Solicitors for the First & Second Respondents: | Australian Government Solicitor |
ORDERS
The application filed 25 May 2004 and amended application filed 21 April 2005 be dismissed.
The applicant pay the respondents’ costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 598 of 2004
| MZWJC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
25 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 28 November 2000 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
The history
The applicant is a citizen of Sri Lanka, from Colombo. He came to Australia in mid-1997 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 27 August 1997.
The applicant claimed that he can not return to Sri Lanka as he fears persecution by reason of his ethnic background as a Tamil and his religion of Islam.
The applicant claimed to be a Tamil Muslim. His father is Tamil however his mother is Sinhalese. He claims that he befriended two men in Sri Lanka who later confided to him that they were supporters of the Liberation Tigers of Tamil Eelam (‘Tamil Tigers’/‘LTTE’). The following year, 1993, he was working in a Muslim area in Colombo and was persuaded to convert to Islam, which he did. He claimed that he was subjected to harassment by both Tamil and Muslim friends – each group believing that he was informing on them to the other. As a result of such harassment, the applicant left his job in May 1996. The applicant claims that he was beaten by Tamil thugs. He claims that shortly after the bombing of a train in Dehiwela in July 1996 he was detained by authorities for a day and seriously mistreated whilst in custody. He said that his release was procured by the intervention of his uncle and friend. Due to his fears of further harassment, the applicant claimed he then left for Kandy and remained in hiding until March 1997 because authorities were still searching for him. The applicant claims that his uncle helped him to procure a false passport, and that the applicant used the said passport to exit Sri Lanka and enter Australia.
The applicant claimed that he used two identities during the course of his applications to enter and remain in Australia, and different passports. The applicant claimed that he entered Australia using a visitor visa on a false passport.
On 1 April 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 29 April 1998.
In the decision made by the Tribunal on 28 November 2000 and handed down on 15 December 2000, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason. The Tribunal consequently found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); as a result the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. Specifically, the Tribunal found that:
a)the applicant gave false evidence about his identity in order to “bolter his claims to refugee status” (Court Book page 68 (‘CB 68’));
b)the applicant does not have a Muslim name as he claimed;
c)it was not satisfied that the applicant had converted to Islam;
d)if the applicant had converted to Islam, country information indicates that Tamil Muslims would in general have nothing to fear from the authorities because they are politically aligned with the Sinhalese government;
e)it did not accept that Tamil Tigers operatives would identify themselves as such to the applicant, thereby placing themselves and colleagues at risk;
f)it was “…utterly implausible that the authorities would detain the applicant for involvement in an offence as serious as a train bombing that killed more than 50 people, then allow him to go free merely due to his uncle and a friend telling the authorities that he was a good boy” (CB 71), and found that the applicant’s claims in respect to the train bombing lacked credibility and that he was never suspected of involvement in the train bombing;
g)the applicant left Sri Lanka on a passport in his real name; and
h)the applicant fabricated his claim of official interest in him.
On 25 May 2004, the applicant lodged an application in this Court, being MLG 598 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant then filed an amended application and contentions of fact and law on
21 April 2005, claiming that the Tribunal had committed jurisdictional error. Summarily, the applicant claimed that:
a)the Tribunal made certain findings which were not supported by evidence, in respect to its finding as to the applicant’s identity;
b)the Tribunal’s identity finding was a critical step in the Tribunal’s reasoning and impacted on its ultimate conclusion; and
c)the Tribunal made a decision on such inadequate material that it applied the wrong test.
The respondent’s contentions of fact and law, filed on 2 May 2005, rebutted the applicant’s contentions and denied that there had been a jurisdictional error committed by the Tribunal. The respondent submitted that:
a)there was evidence before the Tribunal to substantiate the Tribunal’s finding that the applicant was ABC[1] – that being the two passports which contained his photographs, which were “compelling evidence of the applicant’s identity”;
b)the applicant did not produce any evidence to support his claim that he was not ABC;
c)if the Tribunal had made a mistake as to the applicant’s identity, it was a mistake of fact only; and
d)the Tribunal considered the applicant’s claims on the basis that he was a Muslim as claimed and dismissed them on the merits, and so the Tribunal’s decision was not infected by its identity finding.
[1] The Applicant’s name will not be published in compliance with s.91X of the Migration Act 1958.
The matter proceeded with oral submissions at a hearing on 5 May 2005.
The applicant filed contentions of fact and law on 6 May 2005 and a ‘further amended application’ on 10 May 2005. The applicant claimed that the Tribunal had committed jurisdictional error because it failed to take into account a relevant consideration, being the determination by an officer of the Department of Immigration that a certain person who entered Australia in 1999 was ABC.
An affidavit sworn by the respondent’s solicitor, Mr Gavin Carroll, was filed on 10 June 2005, seeking to bring further matters to the attention of the Court. On 15 June 2005 I made orders for the filing of additional material by both parties.
On 14 July 2005 the applicant filed a ‘further further amended application’ and contentions of fact and law. The applicant argued that the Tribunal failed to take into account that the applicant was not the true ABC; and submitted that the Tribunal had a duty to make further enquiries of the respondent “having been put on notice that there was an issue about the identity of the applicant and any information about this issue was readily available from Departmental sources. To proceed to a decision without making any attempt to obtain that information was so unreasonable as to vitiate the exercise of the decision-making power and/or was a breach of the rules of natural justice and/or was an improper exercise of power.”
The respondent filed further submissions on 28 July 2005, and argued that the claim by the applicant that the Tribunal made a general credibility finding (as a result of its identity finding) which infected its whole decision could not be made out because the Tribunal dealt with the applicant’s claims as a Muslim and found that they were inherently implausible.
On 9 August 2005 I heard further oral submissions from all parties and then reserved my decision.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions & findings
The main argument advanced by the applicant was that the findings which were made by the Tribunal about the applicant’s true identity were unsupported by evidence. The applicant claimed in his protection visa application (at Court Book p. 16) that his birth name was LMN and that he was partly Tamil and partly Sinhalese. He said he later changed his name to XYZ, and his claims for protection were based on him being a Muslim.
The Tribunal made the following findings (CB 68):
The Tribunal notes that the applicant has used two identities during the course of applications to enter and remain in Australia. It notes that he used a passport bearing his own photograph, but in a name different from what he now claims to be his own. That passport was issued in May 1997. The applicant is also in possession of an expired passport bearing the same name as the current passport and containing his own photograph. That passport was first issued in 1988 and bears a stamp showing it was renewed on 14 June 1996. It contains an Australian visitor visa issued in June 1996.
There is no documentary evidence before the Tribunal of the applicant’s identity apart from his passports. Those passports contain his own photograph, a visitor visa and other stamps. The passports have twice been renewed.
In weighing all the evidence before it the Tribunal concludes that the applicant is the person depicted on those passports and that he has given false evidence as to his identity in order to bolster his claims to refugee status. The Tribunal concludes that the applicant left Sri Lanka on his own passport, thus indicating that he was not wanted by the authorities.
In view of its aforementioned findings it follows that the applicant does not have a Muslim name as he now claims. The Tribunal is not satisfied on the evidence before it that the applicant has converted to Islam. If he were to have done so, all available evidence indicates, however, that he would have nothing to fear from the authorities.
The applicant’s claim was that he came to Australia on a false Sri Lankan passport in the name of ABC issued on 19 May 1997 and numbered M0124176 (CB 92). The applicant claimed that the passport had his photograph on it. He indicated that it had been put on the document by his uncle who “made a passport for me” (CB 40). The claim was that one passport only was made for the applicant by his uncle. However the applicant also produced another passport in the name of ABC that had been issued in 1988 and was numbered J0723493 (CB 34). The Tribunal found as a matter of fact that this earlier passport also contained the applicant’s own photograph (CB 68). It was a different photograph to the photograph exhibited on the latter passport. The respondent contends that this was presumably because he was much younger when the photograph for the earlier passport was taken. I accept that contention and the submission that it was clear evidence to support the Tribunal’s finding that the applicant was ABC. There were two passports issued many years apart, both containing the applicant’s photograph. I accept the submission of the respondent that passports are official documents of the sort that are generally regarded as compelling evidence of identity. In all the circumstances, the claim by the applicant that there was no evidence to support the Tribunal’s finding on the applicant’s identity can not be substantiated. The applicant did not produce any documents or other evidence to support his claim that he was not ABC. Further if the Tribunal was wrong about the applicant’s identity, such a finding would be a mistake of fact. It certainly could not be construed as a jurisdictional error.
In support of the applicant’s claim that the Tribunal did make a mistake of fact about the applicant’s identity, the applicant alleges that the Departmental file note (at CB 58) supports the proposition that the real ABC entered Australia at a later time. The minute however did not recite any independent evidence in support of its conclusion and in my view the Tribunal was under no obligation to accept the assertion that the second Mr ABC was the real Mr ABC. I reject the submission advanced by the applicant that the minute establishes that the Tribunal’s finding was unsupported by evidence. The minute from the Department (at CB 58) is not binding on the Tribunal. In any event the ‘non-existence of a fact’ ground for review in my view is no longer available. It existed under the old Part VIII of the Migration Act and the relevant common law ground is making a finding without evidence. As I have already determined that there was evidence in the form of the passports that supported the Tribunal’s finding as to identity, the ‘no evidence’ ground cannot be made out and there is no error that supports judicial review.
The applicant further contended that the Tribunal erred by not making further enquiries about the identity of the applicant. However in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002), the Full Court of the Federal Court held at [24]-[25]:
24 But in any event it is clear that s 427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure "required by the Act" within the meaning of s 476(1)(a). In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86] the Full Court said:
"If, as his Honour in our view correctly held, s 427(1)(d) does not impose any duty on the Tribunal to make further enquiries, it is difficult to see how the Tribunal could have erred in law by assigning what is said to be a reason that is factually incorrect (that such enquiries would not assist) for not doing something it was not legally obliged to do.”
25 By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some "confluence of circumstance and claim” which somehow enlivened some dormant residual obligation under s 427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s 427(1)(d). No such obligation exists.
In this case there is no assertion that the decision was not made in good faith (nor is there any basis for such an assertion). It is also noted that the applicant himself made a Freedom of Information request (CB 57) pursuant to which he was given copies of documents on the Departmental file, which refer to the other alleged ABC. The applicant himself could have raised the issue with the Tribunal. In circumstances where he did not do so, it can not be said that it was unreasonable for the Tribunal to not pursue the point.
The applicant further submits that the whole decision by the Tribunal was affected by the identity finding. However the Tribunal proceeded to assess the applicant’s claims on the basis that he was in fact XYZ as he claimed to be. Indeed the balance of the findings of Tribunal, set out in its reasons contained at Court Book pp. 68-72, deal with the applicant’s claims on the basis that he was a Muslim as he claimed.
The Tribunal recited early information to the effect that Muslims would not be suspected of supporting the LTTE and found accordingly. This finding did not turn on the applicant’s credibility. Further, the Tribunal’s conclusion that the LTTE operatives would not identify themselves as such to the applicant because of the risks of doing so, was based on the inherent implausibility of the suggestion made by the applicant and not on the applicant’s personal credibility.
The Tribunal further considered that the evidence of the applicant’s claim of having been tormented by the Tamil Tigers did not amount to persecution and in any event found that State protection would have been available to the applicant. That conclusion had nothing to do with the applicant’s credibility. Further the Tribunal’s findings about the claim that the applicant was arrested with respect to the train boarding was a result of the implausibility of a person connected with the deaths of 50 people being released from custody because of what his uncle said.
With respect to the claim made by the applicant that he had been beaten by Tamils, the Tribunal noted that he did not make the claim at the hearing until prompted by the Tribunal and further in view of the fact that he did not know the identity of his attacker the Tribunal considered that it was an isolated and random act of criminal violence. Again that finding is not based on the applicant’s personal credibility.
Accordingly I accept the contention of the respondent that even if the Tribunal made a mistake of fact about the applicant’s identity, it was supported by evidence and it did not provide the basis of jurisdictional error. Further that finding by the Tribunal made no difference to the decision as the Tribunal separately considered the applicant’s other claims on their merits. The application should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 15 November 2005
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