MZWKH v Minister for Immigration - [2005] FMCA 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWKH v MINISTER FOR IMMIGRATION

[2005] FMCA 309

MIGRATION – Protection Visa – where jurisdictional error.

Judiciary Act1903, s.39B
Migration Act 1958, ss.36(2), 91S, 418(3), 424(1)

S1775/2003 v Refugee Review Tribunal (2004) FCA 1758
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Applicant:

MZWKH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 630 of 2004

Delivered on:

17 March 2005

Delivered at:

Melbourne

Hearing Date:

7 March 2005

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms S. E. Moore

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 630 of 2004

MZWKH

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the Court is made pursuant to s.39B of the Judiciary Act 1903 (Commonwealth) seeking judicial review of a decision of the Refugee Review Tribunal (the RRT) made on 28 February 1997. The RRT affirmed a decision of the delegate of the respondent to refuse the applicant a protection visa.
The applicant is a male national of Nepal of Hindu faith. He was born in July 1959. He arrived in Australia on 22 June 1995 on a visitor's visa. On 15 September 1995 the applicant applied to the Department for a protection visa pursuant to the Migration Act 1958 ("the Act"). On 12 February 1996 a delegate of the respondent refused to grant the visa to the applicant, and on 14 March 1996 the applicant applied to the RRT for a review of that decision.
A hearing occurred on 2 December 1996 and the applicant gave evidence with the assistance of a Nepalese interpreter. The applicant was also represented before the RRT by a legal adviser.
On 13 August 1999, approximately two years and six months after the decision of the RRT, the applicant joined what is described as the Lie v Refugee Review Tribunal proceedings in the High Court of Australia. In those and the related proceeding of Muin v Refugee Review Tribunal, each of the respective plaintiffs sued in a representative capacity complaining of procedures adopted by the RRT in reviewing adverse decisions of delegates of the Minister in relation to applications for protection visas. In each of the cases commenced in the High Court's original jurisdiction, Gaudron J referred questions to a Full Court. The questions asked whether upon certain facts stated and the inferences, if any, to be drawn from those facts there was a failure by the RRT to accord procedural fairness or a failure to comply with s.418(3) or s.424(1) of the Act.
On 8 August 2002 the High Court made orders in both the Muin and Lie proceedings answering certain questions which could be properly regarded as favourable answers to the plaintiffs. The High Court found in the affirmative that there was a failure to accord the plaintiffs procedural fairness. Following that decision, Gaudron J made further orders in each proceeding, which inter alia granted each of the named representatives, including the applicant before this Court, leave to file an application seeking an order nisi in relation to the decision of the RRT.
The applicant filed with the High Court an affidavit of his then solicitors which annexed a draft order nisi and copy reasons of decision of the RRT. The order nisi sought constitutional relief. The applicant's matter was one of a number then to be considered by the Court and issued by his then solicitor. Essentially, the applicant asserted that the RRT decision was beyond jurisdiction, that there had been a denial of procedural fairness and that the RRT took into account matters adverse to the applicant without notice to the applicant and that it otherwise breached the rules of natural justice, the procedures required by law to be observed were not observed and that the making of a decision was an improper exercise of the powers conferred by the Act.
No particulars of the grounds were provided otherwise than by the affidavit. The supporting affidavit asserted that the RRT took into account written submissions by the Department without bringing those submissions to the attention of the applicant.
After the application was issued in the High Court, the applicant's matter was allocated a proceeding title S1770 of 2003 v Refugee Review Tribunal and Another. Immediately upon filing the affidavits, all the applications were remitted to the Federal Court of Australia. In the Federal Court the applicant's case continued to be entitled S1770 of 2003 v Refugee Review Tribunal and Another and was given proceeding number N2321 of 2003.
On 30 April 2004 a number of proceedings, including the applicant's, were listed before His Honour Emmett J at a callover. On that occasion orders were made in relation to the applicant's application as follows:-
“(1) Order 51A rule (1) of the Federal Court Rules does not apply.
(2) The application for an order nisi be refused”.
Counsel for the respondent provided the court with a copy of his Honour's reasons for judgment, which I note were generic reasons for judgment in relation to all matters listed before his Honour on 30 April 2004, though I have been specifically provided with the order which relates specifically to the applicant before this court. In the reasons, Emmett J noted that there was no evidence at all in any of the matters that submissions by the secretary of the department had been made or that they had been taken into account by the RRT and found there was nothing in the material that disclosed any arguable case for the grant of any relief. I note further that the respondent in those proceedings sought costs personally against the applicant's solicitors on the ground that the proceeding was commenced and prosecuted without any proper consideration of its prospects of success and that on 26 July 2004 Emmett J, after hearing a notice of motion filed on behalf of the Minister, ordered that the applicant's solicitors pay the costs of the Minister for both the proceedings and the motions (see S1775/2003 v Refugee Review Tribunal (2004) FCA 1758). In his decision, Emmett J states the following as part of his conclusion:-
“... I should add that, in the course of argument, counsel for the applicants raised possible prejudice arising from refusing orders nisi at this stage. One was that there may be an issue of estoppel. The solicitor for the Minister indicated, as he had on previous occasions, that the Minister takes the view that, as a matter of law, there would be no issue of estoppel created by the refusal of orders nisi.
(7) Counsel for the applicants also raised the possibility of prejudice by reason of unexplained delay. I do not consider that that is a prejudice. Any delay will have to be explained in any event. It would be open to the applicants, if the question were raised by the Minister, to point to the fact that the proceeding was commenced in the High Court. Any explanation as to why nothing was done between then and now would be the subject of evidence, if the occasion arose”.
The current application before this Court was filed on 27 May 2004. Procedural orders were made by a Registrar of this Court on

20 October 2004 requiring the applicant to file and serve further particulars of the application, if any, and to file and serve contentions of fact and law. Although the date fixed for the filing and serving of the material was not complied with by the applicant, there does not appear to be any issue taken in relation to that matter and it is noted that on 28 February 2005 the applicant did file a document entitled ‘Applicant's Contentions of Fact and Law’.
When the applicant appeared before the Court this day, the assistance of an interpreter was obtained by audio‑link. The interpreter interpreted the proceedings and in particular confirmed that the applicant's facts and contentions, although in English, had been translated for him and that he understood the facts and contentions as filed. He confirmed through the interpreter before this Court that he understood the submissions filed for and on behalf of the respondent on 2 March 2005 and again had the assistance of that material being the subject of interpretation. He was assisted with interpretation of the Court book. The applicant further sought to rely upon written submissions dated 3 March 2005 and signed by him. Again, that document he claimed, though in English, had been interpreted to him so that he understood its contents. The respondent was content for the applicant to rely upon that further written submission in support of the application before the Court this day.
It is appropriate to set out the details of the applicant's claim before the RRT. The RRT recorded the applicant's claims both at the primary stage before the Department and before it in his written submissions.

I should note that the respondent had relied upon an affidavit in this matter sworn on 10 November 2004 by Mr. Salman Ali. That affidavit from Mr. Ali, a legal officer employed by the RRT, deposes to the fact that the RRT's file appears to have become lost or is missing. However, it is confirmed that there is material in the Court book, which provides at least copies of relevant documents used in previous litigation. The affidavit by Mr. Ali attaches correspondence seeking copies of the RRT file and the deponent in the affidavit states the following:-
“13. On the basis of the enquiries and searches I have undertaken and of the information provided to me by others, I believe that all reasonable searches and inquiries have been made to locate the RRT file”.
I accept the affidavit evidence of Mr. Ali and, in my view, the absence of the RRT file does not in the circumstances of this application lead to any undue prejudice of a kind that would prevent this Court from proceeding to hear and determine the application before it. It is noted that before the RRT, the applicant claimed to fear persecution from the Nepali Congress Party and the Communist Party. He claimed that he had been assistant secretary of the Communist Party that he had been beaten up by members of the Nepali Congress, that false criminal allegations had been made against him and had been taken to the police station where he had been beaten and asked to join Nepali Congress and tell them secrets of the Communist Party. He claimed to have resigned from the Communist Party in 1994 along with 15 of his friends, because they felt that the party was not fulfilling its promise of looking after the interests of the poor.
He claimed that following his resignation the Communist Party would ask the police to beat him and that they had been responsible for burning down his farm. He also claimed that the Communist Party made false criminal allegations against him and he was picked up and questioned by the police on about seven occasions. On one of those occasions, he said he was arrested without a warrant and detained by police for three months and on another occasion the party came to his house, beat him, robbed him and left him for dead. That summary of the claim before the RRT is taken from the respondent's outline of facts and contentions and on a proper reading of the material would appear to be an accurate summary of the claim then before the RRT.
I should add that before this Court, the applicant has claimed further that the situation in Nepal remains unstable. He referred to there being a number of deaths per day and further referred to there being looting and otherwise general civil unrest and instability. It is not necessary for me to refer to it in any further detail other than clearly the applicant has sought to assert other facts which he claimed had not been provided to the RRT. In his written submission the applicant states the following:
“(1) The Applicant was Assistant Secretary of Communist Party branch. He then resigned from the party because of political dissatisfaction. He faced threats to be kill by both the Nepali Congress Party and the Communist Party. During 1991 and 1992 police arrested and beat him at the Police Station. On later occasion, police beat him on the instigation of the Communist Party. In 1995, he was arrested without warrant and imprisoned for three months.
(2) Also members of the Communist Party harassed him and destroyed his property.
(3) Communist Party of Nepal feared he may have given party secrets to interested parties and sought to harm him.
(4) The RRT failed to consider the ability indeed willingness of Nepal authorities to protect him. The RRT failed to adequately consider the applicant's claims of violence by political leaders and police.
(5) The applicant would not be able to relocate to other areas in Nepal”.
I shall return to the applicant's contentions of fact and law after consideration of the RRT's decision and reasons for its decision. In its decision, the RRT has clearly considered the written material provided by the applicant and the applicant's evidence which was available to the RRT at the hearing. Under the heading "Discussion of Claims", the RRT accepted that the applicant "being outside of his country of origin has a subjective fear of persecution". It goes on to say the following:
“I accept that the Applicant is reluctant to return to Nepal because of harassment which he may have suffered in the past at the hands of gangs of thugs supporting the Communist Party and other opponent political parties. The risk that he fears is based, in the Applicant's view, on his active involvement with the Communist Party, and his subsequent apostasy away from the party”.
The RRT then considers the political situation in Nepal at the time of its decision and then further considered specifically the applicant's situation. It is relevant to set out its findings as follows (Court book page 59):
“I accept that the Applicant, as an active member of the Communist Party of Nepal, was involved in disputes and physical altercations with opposition party members, and subsequently with members of his own party, of the sort which he has described. There are many contemporary reports which support the claims of clashes between different political groups in the aftermath of restoration of democracy in Nepal in 1990, particularly at the time of general elections in 1991 and 1994.
...
I accept, therefore, as credible that the Applicant may have suffered mistreatment and victimisation by unlawful elements from opponent political parties, as well as from the Communist Party itself”.
The RRT then seeks to consider further the applicant's claim and in particular whether or not the attacks and the harm experienced by the applicant could be attributed to the Nepalese authorities. It goes on to state the following:
“On this issue, I am not persuaded on the evidence that the Nepalese authorities could have withheld protection from the Applicant. To begin with, there appears to have been some exaggeration in his testimony concerning the extent of the harm suffered on the occasions of attack by his opponents. At the primary stage, in his original application for refugee status, the Applicant has claimed that his assailants did “great havoc to my property leaving me with nothing”. (Further in the same application, however, he states that, “from the economic point of view, my house and property was totally damaged by the hurricane and flood”.) Nevertheless, he claims set out by the Applicant at the primary stage place greater stress on prospective risk of harm from his opponents rather than containing particular reference to past incidents of persecution.
The inclusion at interview and the review of more detailed information describing specific events of harassment and intimidation by his opponents suggests that the Applicant has exaggerated his claims in order to strengthen the grounds for his application for stay. In this regard, the Applicant's oral evidence at hearing with regard to the incidents of assault by his opponents tended to be vague and lacking in coherence.
The Applicant's claim of arbitrary detention by the police for three months is of particular concern. There is certainly evidence from objective sources which shows that police in Nepal commit human rights abuses and detain people unlawfully for extended periods. Such information notwithstanding, however, I have difficulty accepting as credible the Applicant's claim of incarceration. In the first instance, the Applicant's account at hearing of the circumstances of his imprisonment was hesitant and unconvincing. Further, it is difficult to reconcile this claim with other factual statements made by the Applicant. For example, he has stated in his original application for refugee status that he was employed as a salesman at the “Santa Fansy” shop until the end of January 1995. He also claimed consistently that he was arrested in 1995 and jailed for three months. However, he also spent four months in Kathmandu living with a friend until his departure from Nepal in June 1995. It is clear, therefore, that a three‑month imprisonment term could not fit into these time frames”.
The RRT then refers to further country information and the current situation as it then was before the Tribunal. It otherwise draws conclusions that there was a lack of interest in the applicant's whereabouts on the part of authorities, which suggests that they were not pursuing him at the time when he left the country. It draws other conclusions in relation to the possibility of relocation. It notes his argument that because of his political profile he would not be safe in any part of Nepal. It notes otherwise that the applicant had spent a number of months having relocated to Kathmandu without any Convention‑related difficulties. Ultimately it concludes that it did not consider relocation within Nepal to be an unreasonable option for the applicant, which is preferable to resettlement to a third country in the absence of any Convention‑related threat or harm.
The RRT considers there to be no viable alternative version to the facts which establishes that the applicant faces a real chance of persecution on return. When considered cumulatively, it found that the claims of the applicant still provided no real chance that he would be persecuted for any Convention ground in Nepal "at the present time". Whilst expressing some sympathy for the applicant's desire to remain in Australia in the hope of establishing a new life, the RRT concludes that these unfortunate circumstances do not establish that he has a well‑founded fear of harm in the sense of the Convention.
In the applicant's contentions of fact and law the grounds relied upon by the applicant are as follows:-
·The RRT had fallen into error of law in construing the boundaries of persecution "for reason of .. race, religion, and political opinion…." in the definition of refugee in Article 1A(A) of the Refugee Convention.
·The RRT has jurisdiction to review the decision of the delegate, but has no power to make a decision which the delegate was not authorised to make. It follows the RRT is bound to apply correctly the definition of a refugee under the Refugees Convention ("the Convention") incorporated by s.36(2) of the Act. If the RRT misconstrues the definition of a refugee, it acts without jurisdiction and has therefore fallen into jurisdictional error of law.
·The RRT in the present case concluded that the persecution feared by the applicant was not for a Convention reason.
·The applicant submits on the basis of the RRT's own reasons for decision that the RRT had erred in construing, in the definition of a refugee for the purpose of s.36(2) of the Act, the term in article 1A of the Refugee Convention "persecution for reasons of ... race, religion, political opinion ... etc".
·Because the RRT erroneously considered it was bound by s.91S of the Act to reject the applicant's claims, it failed to consider and determine whether he had a well‑founded fear of persecution which would have required an assessment of the risk of treatment amounting to persecution by the state. The RRT dealt with state protection only cursorily and indeed its consideration was cursory because of the view it took of the issue of the motivation of the harm feared by the applicant.

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.”
The respondent submits that there is no error of a kind which would attract judicial review in this matter. There is no denial of procedural fairness and it was submitted that in the context of this application the consideration by the RRT of the application before it was not one which found that country information was decisive or of crucial importance. To that extent, any purported failure to disclose and invite comments in relation to adverse country information, as would appear to be the case in some of the applications in what were regarded as the Muin cases, does not apply to the present case. In the present case it is submitted that there is no reasonable cause of action raised by the applicant. It is not demonstrated by admissible evidence that any failure to give him an opportunity to respond in any event to any particular country information would have made a difference to his case, nor has he identified specific country information in question that was relied upon by the RRT. He has not established that he was not given an opportunity to respond to country information. Accordingly, it was submitted that the applicant has been unable to demonstrate unfairness necessary to establish a denial of natural justice and has been unable to show that any denial of opportunity to comment made a difference to the outcome of his case.
In relation to the issue of the claim in relation to s.91S of the Act, it was submitted that the claim was without basis and entirely misconceived. The RRT made no reference to s.91S as asserted by the applicant. In passing I should note that that would appear to be clearly correct and I note that like the respondent, it would hardly be surprising as that section had not been introduced into the Act at the time of the RRT hearing. Although the respondent does not rely upon issue estoppel, it does submit that the Court in discretion is still entitled to consider the delay in the matter. The delay is between the decision of the RRT on 28 February 1997 and the applicant joining the Muin proceedings some two and a half years later on 13 August 1997. It is clear that the Court is entitled to consider that issue of delay.

Reasoning

In my view, it is clear that the applicant, both in his outline of submissions and in the written submission filed on the day of the hearing, has essentially sought to challenge the factual findings of the RRT. The RRT in the course of its reasoning has embarked upon an assessment of the applicant's version of events and ultimately has drawn conclusions which do not assist the applicant in the application for a protection visa. Although some passing reference is made to country information, I am satisfied that that information was not determinative of the RRT decision, or, in the alternative, I am further satisfied that in the circumstances it could not be claimed that the applicant did not have through the interpreter and his legal representative an opportunity to put before the RRT further material and/or comment on existing country information which may have assisted the application at the time.
Whilst I have no doubt the applicant has a genuine concern about the current situation in Nepal as relayed to this Court at this hearing, I am satisfied that on the material before me he has not disclosed in the contentions of fact and law or in his most recent submission the basis upon which this Court could find jurisdictional error and a basis upon which it could be concluded that it is appropriate for there to be judicial review of the RRT decision. Matters raised by the applicant in the written documents seek to further refer to factual matters which, whilst clearly of concern to the applicant, do not of themselves demonstrate that the RRT has fallen into jurisdictional error or that in the course of its hearing and proceedings has otherwise denied to the applicant procedural fairness or is in breach of the rules of natural justice.

It follows therefore that the application should be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 March 2005