MZWKP v Minister for Immigration
[2005] FMCA 1043
•18 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWKP v MINISTER FOR IMMIGRATION | [2005] FMCA 1043 |
| MIGRATION – Protection visa – no jurisdictional error. PRACTICE AND PROCEDURE – Hearing in absence of Applicant – Applicant confirmed intention to rely on written submissions. |
| Migration Act 1958, s.474 |
| Applicant M117 of 2003 v Minister for Immigration [2004] FMCA 166 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 10 |
| Applicant: | MZWKP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 658 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 18 July 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application as amended 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 658 of 2004
| MZWKP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the applicant seeking review of a decision of the Refugee Review Tribunal (the RRT) dated 30 March 1999. In its decision the RRT had affirmed a decision of a delegate who refused to grant to the applicant a protection visa. The proceedings this day were heard in the absence of the applicant. The applicant did not appear, though had advised the respondent which in turn had advised the court that due to financial reasons the applicant who is now in South Australia was unable to attend the court. The applicant has, however, relied upon an amended application filed 19 November 2004, together with contentions of fact and law filed the same day. In addition, the applicant has forwarded a facsimile transmission on 17 July 2005 to the respondent's solicitors and in turn has sought to rely upon those additional submissions and/or particulars.
Upon being notified that the applicant was not able to attend and that according to the respondent's solicitors was content for the court to proceed to consider the matter in his absence, my deputy associate made contact with the applicant at a telephone number provided by him to the respondent's solicitors. During the course of that telephone contact, the applicant confirmed that he was content for the matter to proceed in his absence this day and did not wish to attend the scheduled hearing, though he did ask that the correspondence to which I refer dated 17 July 2005 be received by the court and that he be permitted to rely upon that correspondence. No objection has been taken by the respondent to the applicant following that course. Although the court was minded to consider the conduct of the hearing by audio-link, it seemed from a practical point of view that in the circumstances where the applicant has expressed a desire that the proceedings be held in his absence - though on the proviso that he be permitted to rely upon more recently submitted handwritten submissions dated 17 July 2005 - that it was appropriate in the interests of justice that the matter proceed on the written material and that accordingly an audio-link hearing was unnecessary.
The matter then proceeded by way of submissions from the respondent, and the respondent's contentions of fact and law filed 19 January 2005 were adopted. It should be noted that in addition to the grounds and particulars set out in the amended application filed 19 November 2004, a further particular seems to be raised in the more recent material which goes beyond reference to country information and other issues already in the amended application, and in particular refers to the following:
“Letters provided by me in support of my political involvement and the threat I face were dismissed as appearing to be standard letters. It is claimed that that particular supports the application, and to the extent that I appear to rely upon it, I include that as a further particular to be subjoined to the particulars already in the amended application.”
The background to this application is set out in the respondent's contentions. The applicant who is a citizen of Sri Lanka arrived in Australia on a student visa on 18 February 1996. He lodged a protection visa application on 30 June 1997 and on 13 August 1997 a delegate refused the grant of the protection visa. On 10 September 1997 the applicant lodged the application with the RRT which as I have indicated by a decision dated 30 March 1999 affirmed the delegate's decision to refuse the grant of a visa. On 13 August 1999 the applicant joined the Muin/Lie class action in the High Court of Australia and subsequently filed an application for constitutional writs in the High Court.
The applicant's application to the High Court was remitted to the Federal Court of Australia from which it was transferred to this court where it was heard as part of a special mention list on 24 February 2004 by me, and on 18 March 2004 I delivered a decision which included an order that the application for order nisi be refused (See Applicant M117 of 2003 v Minister for Immigration [2004] FMCA 166). The applicant unsuccessfully applied for leave to appeal against the decision of this court and an order was made by Heerey J that the applicant pay the respondent's costs. On 1 June 2004 the applicant applied to this court for orders quashing or setting aside the RRT decision made on 30 March 1999 and remitting the case to the RRT for consideration by another member in accordance with the law.
It should be noted that although the matter is listed before me and despite the fact that I have previously heard the application for order nisi to review, no objection is taken to this court presently constituted to hear this application. The respondent does not take issue with the right, as it were, of the applicant to pursue this application, given that the order made by the court on a previous occasion could properly be characterised as an interlocutory order refusing the application for order nisi. In the circumstances I do not see any prejudice to the applicant in this court further hearing and determining the substantive matter, and I proceed to do so.
The issues raised by the applicant in the amended application include the following a claim that the decision was made without jurisdiction or was affected by an error of jurisdiction and is not a decision to which s.474 of the Migration Act 1958 as amended applies. Particulars given include the following:
“The decision of the Tribunal is affected by a jurisdictional error in that the Tribunal asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material.
PARTICULARS
To conclude that even though it accepts that I was a UNP supporter, but based on the Country Report and DFAT cables such an association does not give rise to a well founded fear of persecution. This is incorrect because there is a whole lot of information from DFAT cables to country reports, which deals with political violence in Sri Lanka. These reports are full of incidents of violence which has occurred around election times. The Tribunal is being very selective in its use of information, as it has chosen to not refer to these particular reports. By doing this the tribunal is not referring to relevant material which is very helpful to my case and gives me a greater chance of showing that I do indeed have a well founded fear of persecution.
The Tribunal says that even if I was attacked, I was able to seek the protection of the state. This is not correct, as I made complaints to the police, but they chose not to act on those complaints. Just because there is a police force provided by the government, does not mean that I was able to seek their protection. It is not good enough for the police to be there, if they do not act upon and investigate complaints, as this is the same as not doing anything.
The Tribunal has made a great deal of the fact that I delayed my application for asylum for some seventeen months after my arrival in Australia. I say that the delay does not indicate that I did not have a strong fear for my personal safety or future wellbeing when I left Sri Lanka. I say this was a satisfactory explanation and should not have been taken as a factor when making its final decision.”
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.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The respondent has noted that the RRT fully considers the written and oral claims made by the applicant in support of his application for a protection visa. Those factors include the following:
“12.1He was a keen supporter of the United National Party (UNP); he joined at 15 years of age; he worked on its behalf during elections; he organized meetings, distributing leaflets and door-to-door canvassing.
12.2On March 1995, two people armed with a club and a chain arrived at his house and threatened him with death if he did not cease working for the UNP; he reported the incident to police but heard nothing further.
12.3In August to November 1994, he received several letters and telephone calls at his home address threatening his life; he kept quiet because no one would have believed him; there was no point in reporting threats to the police because they were loyal to the PA government.
12.4In November 1994, while he was waiting for a bus, officers of the Special Task Force told him to get into their vehicle and took him into their headquarters where they seriously mistreated him to show him how they treat UNP supporters; he was released the next day.
12.5He also fears harm from Janatha Vimukthi Peramuna (JVP) and it is still active and blames the UNP for its destruction.
12.6He had delayed applying for a protection visa because he thought that he should study; he stopped attending classes because of financial problems and was informed his visa may be cancelled; it was not his intention to study when he came to Australia.
12.7Most acts of violence are not disclosed and the government suppresses news reports; published reports are not accurate; the authorities are nervous to act on reports of violence against UNP members as they fear they will lose their jobs.”
There is no doubt on a proper reading of the RRT decision that the RRT did consider and have regard to country information which it considered from a base of information it obtained and also it considered further information provided by the applicant. It seems clear to me on a proper reading of the RRT decision that it could not be claimed in this application that it has failed to appropriately consider the country information. The weight that the tribunal places on that country information and the conclusions reached after analysis of that information is on all the authorities a matter for the RRT. I cannot see on my reading of the RRT's decision any error in relation to the way in which it has dealt with country information. It is indeed a matter for the RRT to determine what it regards as relevant and to then give appropriate weight to that information (See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 10 at [11].
I am further satisfied that having regard to the RRT's decision that it did properly consider the way in which the applicant had presented his application. In particular I accept the submissions made for and on behalf of the respondent in relation to the issue of state protection. These matters are matters which are particularly matters of finding of fact and the RRT is perfectly entitled in circumstances of this kind to analyse the material before it and to draw conclusions as to the state of that evidence which may or may not support a claim or a conclusion that the country of nationality did not provide citizens with a level of state protection required by international standards.
To the extent that it becomes further relevant, I am also satisfied that the letters provided by the applicant in support of his political involvement were indeed considered as part of a fact finding mission of the RRT. I see no error in its reasoning process concerning those letters. Indeed in its conclusion in referring to the letter, although not referring to the letters appearing to be as suggested by the applicant, standard letters, the RRT states the following at page 78 of the court book:
“A letter, belatedly submitted by the applicant and purportedly from a provincial councillor, makes vague statements concerning threats to the applicant from the time of elections in 1994. Despite claiming a close association with the applicant the writer provides no detail to corroborate the applicant's specific claims. The writer displays no independent knowledge of any problems that the applicant faced and is apparently reliant on what he has been told by the applicant. Accordingly the Tribunal gives no weight to the aforementioned correspondence.”
That conclusion and the reasoning on which it is based follows an analysis entirely open to the RRT of material presented to it by the applicant. I can see no error in the reasoning process of the RRT set out in the extract to which I have referred.
In relation to the issue of a delay in applying for a protection visa, it is clear that in this case there was a significant delay of 17 months in relation to the applicant's application for a protection visa. Whether or not a reasonable explanation is provided, the fact remains that delay is a legitimate issue for the RRT to take into account in the assessment or genuineness or depth of an applicant's alleged fear of persecution (See Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349 applied by the Full Court of the Federal Court of Australia in the matter of Thirasami v Minister for Immigration and Multicultural Affairs (1999) FCA 1632 at [10]). It is clear that the RRT did not accept the applicant had fled Sri Lanka in order to seek protection that would have delayed his application for so long and only made it because he faced cancellation of a student visa. Again I accept as submitted by the respondent that that finding was open to the RRT. In any event, for the reasons given, I cannot on the material before me determine any error of a kind which would enable this court to intervene in a decision or provide any or any proper basis for judicial review. There is clearly no jurisdictional error in this application. It follows in the circumstances that the appropriate order should be that the application be dismissed with costs.
Counsel for the respondent appropriately drew to the court's attention further issues raised by the applicant in the handwritten submissions dated 17 July 2005 which relate specifically to country information and a claimed inability on the part of the applicant to comment on information relied upon by the RRT, and further that in using the country information it was believed that the RRT did not give due consideration to the applicant's personal situation. So that these issues raised in brief terms would constitute a claimed denial of the opportunity to comment and/or use of information which did not deal appropriately with the personal situation of the applicant. It is clear on a proper analysis of the material that country information had been referred to by the delegate (court book page 41). That information was the subject of submissions made in writing by the applicant commencing at page 52 of the court book. Although the RRT refers to a different source country information, I am satisfied the substance of the country information is similar to the information dealt with by the delegate at first instance and was subject to comment by the applicant in his written submissions. In my view the manner in which that matter has been dealt with could not of itself constitute the basis upon which it could be claimed that there has been jurisdictional error. In particular I am not satisfied that there has been any denial of procedural fairness or indeed opportunity to comment on material, given the substantive material relied upon by the RRT similar to the substantive material already before the delegate subject to comment by the applicant. In those circumstances those additional grounds sought to be relied upon cannot be sustained.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 July 2005
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