MZWJD v Minister for Immigration
[2005] FMCA 724
•23 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJD v MINISTER FOR IMMIGRATION | [2005] FMCA 724 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, s.36(2), 91R, 91S |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 255 Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte Applicant S20 2002 [2003] 198 ALR 59 |
| Applicant: | MZWJD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 599 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 23 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms L. De Ferrari |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 25 May 2004 be dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 599 of 2004
| MZWJD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) made on 29 June 2001. In its decision the RRT had affirmed a decision of the delegate of the respondent not to grant to the applicant a protection visa.
The applicant is a citizen of Nepal. He came to Australia on 25 May 1998, and on 10 November 1999 lodged an application for a protection visa. The application for review in this court was filed on 25 May 2004.
The background in relation to this application has been set out in some detail under the heading “Claims and Evidence” of the RRT (Court Book pages 66 – 70). The applicant is a 38 year old man, originally from a village in Nepal. He worked in Kathmandu as a travel consultant from 1987 until April 1998 which was just prior to his departure for Australia. The applicant claimed that he was born in a remote village. He had to leave school in year 7 as his parents were more committed to political activities than schooling. Even as a young boy he claimed that he was drawn into his parents political activities. In 1979 there was a major revolution, after which his father was elected as a member in their local administration. The applicant claimed he returned to school in 1980, completing year 10 in 1984. He then joined his father in politics. His father was a strong supporter of Panchayat and was active in criticising the communists. The applicant claimed that eventually he was forced to flee his village and went to Kathmandu where he commenced his life as a travel consultant.
The RRT sets out further details of the claim, and in particular sets out in its decision other matters which arose at the hearing. It is not necessary for me to set out in detail those other matters, though I do set out in complete form the “Findings and Reasons” of the RRT's decision as follows:-
“The Tribunal accepts that the applicant and his father supported the Panchayat system. However the country information indicates that the Panchayat system ended in 1990 around eight years before the applicant came to Australia. Whilst it is possible that this support caused him problems in the past particularly when he was in Pokhara, the applicant lived and worked in Kathmandu from 1987 onwards. When asked how his support for this system affected him in Kathmandu he referred to pressure and problems at work. However his application indicates that he worked for travel agencies in Kathmandu from 1987 until 1998. His application refers to constant threats. However he did not repeat this in the hearing and the Tribunal does not accept that he would have received threats in Kathmandu for support for a system that had been replaced. Given this and the nature of the Panchayat, the Tribunal does not accept that his support for this caused him problems in the past serious enough to amount to persecution. It is now over ten years since the demise of this Panchayat system, which was essentially one party rule under the king, and so the Tribunal does not accept that there is any real chance he will persecution because of this support if he now returns to Nepal.
He has also claimed that he had problems because of the Maoists. These consist of his parents and his wife receiving threats. However in relation to his parents, he states that they no longer receive threats as they are old. The fact that they no longer do indicates to the Tribunal that there is no real chance he will face persecution because of this claim.
The applicant also claims that his wife has been threatened with extortion by the Maoists. However again it appears from the applicant’s evidence that this was some time ago in 1998 and the threat has not been followed up. Again it does not indicate that the applicant faces a real chance of persecution now.
Having made these findings the Tribunal would add that it is not convinced that the applicant or his family have been targeted for extortion or otherwise by the Maoists. In the Tribunal’s view such a group would not simply go away if they thought they could get funds from someone to assist their cause. The applicant appears to have been an ordinary worker with a family in Kathmandu. There is nothing in his background to indicate any wealth or any reason why he would be singled out. If his family was singled out because he was in Australia then the Tribunal’s view is that they would have persevered. The Tribunal also does not accept given that the Panchayat system ended over a decade ago that the Maoists would have any interest in targeting supporters of this system.
The Tribunal finds that the applicant does not face a real chance of being singled out by the Maoists for extortion or for any other reasons. The Tribunal also finds that there is no real chance the Maoists would be after the applicant because of his support for the king or for the Panchayat system which ended over ten years ago.
In addition to this the country information above indicates that the government is fighting against the Maoists. It also indicates that Nepal has a functioning police force. In the Tribunal’s view this is sufficient to satisfy it that the applicant in Kathmandu has the protection of the State.
The Tribunal notes that the applicant claimed that his landlord was robbed of gold and jewellery by Maoists. Whether this is the case or not it does not in the Tribunal’s view indicate that there is any reason he or his family would be singled out or targeted by the Maoists.
The applicant recently provided material about the tragic death of the king and other deaths in the Royal family. His adviser states that he will have to reveal the truth. Whilst the Tribunal accepts that there is much speculation especially amongst the Nepalese about the tragedy, the Tribunal does not accept that the applicant is in a position to influence anyone about the real cause of this tragedy. The Tribunal does not accept that this tragedy limited as it is to the Royal family indicates that the applicant faces a real chance of persecution should he now return.
The Tribunal also notes that after the Royal family tragedy the Maoists stepped up there offensive. However as stated above there is nothing in the applicant’s history which satisfies the Tribunal that there is any real chance he will be of interest to the Maoists. As a result the Tribunal finds that there is no real chance he will face persecution on account of this development.
Taking all of the applicant’s claims into account the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.”
Those two pages set out clearly the way in which the RRT has analysed this application and the claims then before it
The application for review filed in this court has been accurately summarised in the respondent's contentions of fact and law in the following terms as raising four grounds:
a)The tribunal erred in law in failing to interpret or apply s.36(2) and section 91R(1) and Part VII of the act, and 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 or death;
b)The tribunal erred in interpreting section 91S of the act;
c)The tribunal failed to put to the applicant country information in its possession or available to it;
d)The tribunal denied the applicant procedural fairness.
The applicant, who is unrepresented, has relied upon contentions of fact and law filed on 5 October 2004. Before the court this day, perhaps not surprisingly, the applicant has asserted that the factual material that he presented to the RRT was factual material which he genuinely regards as accurate and appropriate. He has further relied upon, with the consent of the respondent, a brief submission in writing. That submission reads:
“The applicant is a citizen of Nepal who comes from a small village. The family is active in opposition to communists. He fled to Kathmandu. In years 1984-1998, involvement in Panchayat. Family then threatened by Maoists with threats to kill if money not paid. With the growth of the Maoist insurgency, the threats against his family have greater weight.”
I accept the submissions for and on behalf of the respondent in relation to the reliance by the applicant upon s.91S of the Act is misconceived. It is noted that the ground (a) referred to earlier is claimed to be abandoned, and in any event it is submitted and I accept is misconceived.
It is clear to me from the extract of the findings set out above and the claim as made before the RRT that it has appropriately considered the material and discharged the duty it has to properly assess the merits of this application. It is also clear that ss.91R and 91S cannot be relied upon as they were introduced after the decision of the RRT and it could therefore not be required to have considered those provisions.
As appropriately submitted in the contentions by the respondent, the ground of review that the applicant has either not abandoned or which is totally misconceived would appear to be the suggestion that the tribunal misconstrued the definition of refugee under the convention as reflected in the protection obligations stated in s.36(2) of the Act. It is not necessary for me to deal in detail with that issue, save again to briefly refer to the summary provided by the respondent of the elements relied upon by the applicant in support of this contention. They may be briefly stated as follows, that the tribunal:
i)Erroneously concluded that the applicant would not suffer persecution from the Maoist rebels in Nepal;
ii)Fail to consider and determine whether the applicant had a well-founded fear of persecution which would have required an assessment of the risk treatment amounting to persecution by the Maoists;
iii)Dealt with state protection only cursorily.
Each and every one of those elements relied upon by the applicant do effectively seek merit review which is not permissible. It is clear from the extract of the findings and reasons referred to earlier in this judgment that findings of fact have been made by the RRT in the discharge of its duty which are reasonably open to the RRT, and those findings and the reasons, in my view, do not disclose any error of a kind which would attract judicial review. They do not provide a basis upon which this court could conclude that there has been any 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.”
I further rely upon the decision of Kirby J in the High Court in the matter of Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte Applicant S20 2002 [2003] 198 ALR 59 at page 84, paragraph 114:
“114.Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.”
Applying those authorities to which I have referred, it is clear to me, having regard to the grounds now sought to be relied upon, that there is no basis upon which this court can interfere with the decision of the RRT. There is indeed no material before me which would support a conclusion that there has been jurisdictional error of a kind referred to in the authorities set out in this judgment. It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 May 2005
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