MZWKN v Minister for Immigration - [2007] FMCA 1832

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWKN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1832

MIGRATION – Application for judicial review – operation of section 424A of the Migration Act 1958 (Cth) – applicant’s submissions of bias and illogicality also considered.

Migration Act 1958, ss.424A, 424A(3)

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCR 719

Applicant:

MZWKN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 431 of 2007

Judgment of:

Burchardt FM

Hearing date:

22 October 2007

Date of last submission:

22 October 2007

Delivered at:

Melbourne

Delivered on:

12 November 2007

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Ms S.A. Burchell

Solicitor for the First Respondent:

DLA Phillips Fox

ORDERS

That the application be dismissed.
That the Applicant pay the costs of the First Respondent, fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 431 of 2007

MZWKN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By his application filed on 10 April 2007 the Applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 February 2007 and handed down on 22 March 2007.
The matter has had a very extensive history. There have been no fewer than four hearings before the Tribunal. The matter has been twice remitted, once by the Full Federal Court and once by the Federal Magistrates' Court, because of interpretation problems.
It should be noted that the Applicant expressly consented to having

a Russian‑speaking interpreter for this hearing. He confirmed before the Court today not only that the interpretation that had taken place at the hearing of the Tribunal on 10 January 2007 was satisfactory but also that he had no difficulty with the interpreter today.
It is not, in my view, necessary or helpful to set out the history of the Applicant's proceedings in his endeavours to obtain a protection visa. The Applicant arrived in Australia on 27 June 1999. It seems to me that he applied for his protection visa under cover of a letter from his adviser dated 15 June 2000 (CB1).
In the various decisions of the Tribunal included in the Court Book there is reference to the application having been delayed for some 15 months, until 14 September 2000, which I suspect is the date upon which the application was actually lodged with the First Respondent. In any event, it is clear that there was a delay of about a year before the application was made. I mention this as it was one of the matters that the Tribunal relied on in its decision.
It is convenient to deal with this matter by examining each of the grounds in the application.

The section 424A point

The Applicant's application suggests that he should have been

given information pursuant to s.424A of the Migration Act 1958 (Cth) ("the Act"). The information he says should have been given to him consists of the following findings made in the ultimate by the Tribunal:
a)
the White Eagles political group would not have been viewed

as such a threat as to lead to the claimed harm to the Applicant;
b)(a) was the case because the White Eagles political group:
i)had a limited ability to engage in political action,
ii)lacked monetary resources and the ability to advertise, and
iii)had no particular process to engage in recruitment.
The same proposition is articulated in paragraph 4 of the “Applicant's Supplementary Submissions” filed on 13 July 2007.
Before me, the Applicant read from a set of written submissions he

had prepared and which were translated for me by the interpreter. The Applicant subsequently handed up to me what seemed to me to be

a version of that written submission in English. It has been marked as exhibit "A1". The Applicant confirmed that it was a translation of what he had himself read out to me with the assistance of the interpreter.
The Applicant's first point was that the findings above were not the Tribunal's findings but information given to the Tribunal by him.

He says that the information was personal to him.
He therefore says that the information should have been given to him for comment. He also says that the information was extremely significant and was the key to the Tribunal's decision. He says that

if this information had been given to him and he had been given an opportunity, he would have provided the Tribunal with his explanation.
He further says that the information does not come within the exemption contained in s.424A(3); i.e. information:
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member
The Applicant said he was not in “a class of persons” because it was

a group of persons, namely the group at Hashuri, of which he was the leader.
The explanation the Applicant offered to this Court was that the White Eagles was one of the largest political associations in Georgia, and therefore it plainly had a capacity to recruit. The Applicant said that the same proposition as to the size of the organisation covered also the questions of lack of funding and advertising and the issue of the possibility of the White Eagles political party being politically active.
The first difficulty faced by the Applicant is however that the limited capacity of the White Eagles to play an active part in the politics of Georgia, its lack of funds and advertising and processes for recruitment were all matters which stemmed directly from oral evidence given by the Applicant himself to the Tribunal. At CB385 the Tribunal recorded:
The Tribunal asked the applicant how they went about recruiting people who were not members or former members of the paramilitary organisation. The applicant replied that he did not use any kind of recruitment...They did not have any means to advertise their organisation or any newspaper or any access to radio or television...The applicant stated that he would not even say that it was some kind of political organisation because they were not registered. They had a desire to become some sort of political organisation but did not make it because they were never registered...When the paramilitary organisation ceased existence and people came back to their original cities and regions, they also tried to make a political organisation like him and called it the White Eagles. There was no particular recruitment process. Just like he was trying to form his group in Hashuri, they did they same in other regions. The Tribunal asked the applicant whether the party had any funds at all. The applicant replied that it did not have any funds at all because they were not registered as a party. They did not have any funds or any money or any means.
The Applicant confirmed (at CB387) that the White Eagles never had a national office and that there was never any defined membership fee; rather, people paid whatever they could afford. The Tribunal went on:
The Tribunal put to the applicant that he had said before that

the organisation did not have any funds and queried whether people were paying money to it. The applicant stated that no one paid anything. They were just discussing those possibilities. They were talking about the future.
At CB394 the Tribunal said:
The Tribunal put to the applicant that it had some doubt that he was ever involved in setting up and leading in Hashuri a group called the White Eagles that was seeking political registration.

It put to the applicant that it had seen no country information that referred to the White Eagles in any sense as a political group. It put to him that what he had described did not appear consistent with what would be necessary to establish a political group for registration. The Tribunal put to the applicant that the applicant's evidence indicated that the White Eagles had no funds or rules or office. It put to him that he had been able to say little about what was done to recruit people. The Tribunal put to the applicant that it did not sound like they formed a political group that was capable of being a political party. The applicant stated that they used certain rules written on paper but because they were not registered it was just a piece of paper. It did not have any stamp on it. The rules were known to all members and new members. They read and agreed to them. As for the funds at that period people were starving and people had no money so they could not discuss membership.
The Tribunal put to the applicant that, even it accepted that there was a political group called the White Eagles, it doubted that the activities he had described would cause him or his group to be of interest in the way he said.
Having referred to this evidence, the Tribunal (at CB404) found that the White Eagles existed, giving the Applicant the benefit of the doubt, and went on to say:
The Tribunal accepts that there may have been 1500 people involved in the White Eagles political group across Georgia,

a significant proportion of whom were former members of the White Eagles militia, but considers that the group would have had extremely limited ability to recruit widely and to mobilise resources, and hence to engage in any high level of opposition against the government or others.
At CB407 the Tribunal went on:
As set out above, the Tribunal considers that the White Eagles political grouping had a limited ability to engage in political action. It accepts that the applicant's group engaged in some limited activity, including involvement in a small number

of public gatherings. However, it has found that the group exercised no real influence in relation to matters such

as relations with Russia and the unification of Georgia. It lacked monetary resources and the ability to advertise. It had

no particular process to engage in broader recruitment. In light of the general country information and the profile of the applicant's group, the Tribunal does not accept that it would have attracted such adverse interest from the authorities or others,

or been seen as such a threat, that it would have been targeted

in the way the applicant claims when efforts were made to register the group.
The Tribunal went on to find that, because of the lack of likely persecution of the Applicant as a member of the White Eagles, it did not in fact ultimately believe that the claimed harm had occurred or was likely to occur if he were to return.
The First Respondent submitted that the information was not such as to attract the operation of s.424A in any event. Counsel submitted that this analysis was no more than the Tribunal's assessment of the Applicant's evidence and an indication of its thought processes and its determination in respect of that evidence. There was, it was submitted, no need to tell the Applicant of its thought processes (see, for example, VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (“VAF”) at [24]).
VAF has recently been approved by the High Court in SZBYR
v Minister for Immigration and Citizenship [2007] HCA 26 and I accept that there was no obligation on the Tribunal in these circumstances to provide the information to the Applicant for further comment.
Although that is sufficient to dispose of this ground, I should also deal with the Applicant's assertions that this information did relate to him personally and was significant.
The findings in respect of which the Applicant says he should have been informed were general findings not specific to him personally. The circumstances of the White Eagles political movement was plainly a matter of general import, not one wholly specific to him. Although the Applicant claimed to be the leader of the group in Hashuri, nonetheless this was plainly information about a class of persons and not information solely limited to the Applicant himself.
Turning to the question of the significance of the information, I agree that this was plainly a matter the Tribunal regarded as important. Nonetheless, for the reasons given, I do not believe the Tribunal was obliged to give this information to the Applicant as it was not information attracting the operation of s.424A.

Illogicality

What the Applicant said here was that it was illogical to accept that the White Eagles had 1500 members but find that the party had no processes for recruitment and advertising and the like.
In my view, the Tribunal's finding was clearly open to it. There is nothing illogical about saying a party has 1500 members, many of whom, it would seem, may well have been ex‑members of the paramilitary group called the White Eagles, and saying that they were not in a position to recruit widely any further.
Furthermore, it is clear that errors in fact‑finding do not constitute an error of law (Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCR 719 at [146] and the authorities there cited).
I accept the submission of the First Respondent that the Tribunal properly considered the Applicant's claims. The findings it made about issues to do with recruitment sprang directly from the Applicant's own evidence.

Bias

The Applicant's submission here essentially was to the effect that the Tribunal's decision must have been biased because the Tribunal decided against him.
The Applicant’s materials and oral submissions canvassed assertions that the Tribunal was desperate to find against him.
There is nothing in any of the materials in the Court Book or otherwise before this Court that suggests the Tribunal had any preconceived or other bias against the Applicant. This ground must fail.

Conclusion

The grounds raised by the Applicant do not, in my view, disclose any jurisdictional error. I will order that the application be dismissed and that the Applicant pay the First Respondent's costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate

Date: 12 November 2007