MZWLJ v Minister for Immigration
[2005] FMCA 1055
•19 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWLJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1055 |
| MIGRATION – Refugee Review Tribunal – Protection visa – no jurisdictional error. |
| Migration Act 1958 |
| Muin v Refugee Review Tribunal (2002) 190 ALR 601 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZWLJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 720 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr. W. S. Mosley |
| 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 720 of 2004
| MZWLJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By an amended application filed on 29 October 2004 the applicant seeks review of a decision by the Refugee Review Tribunal (“the RRT”) dated 10 July 2000. In its decision the RRT had affirmed a decision of a delegate not to grant a protection visa to the applicant.
The background and chronology in this matter does not appear to be in dispute. The applicant is a male Sinhalese Sri Lankan citizen born on 30 August 1955. He is of Muslim religion and arrived in Australia on 30 November 1998 as the holder of a visitor visa. He was travelling on a Sri Lankan passport issued to him on 21 October 1998. During the course of this hearing the applicant who is unrepresented, though assisted by a Sinhalese interpreter, had raised in the course of submissions a factual issue which he claimed demonstrated an error on the part of the RRT concerning the applicant's ability to speak the Tamil language.
For the present purposes, I am prepared to accept what the applicant states from the bar table that he does in fact have the capacity to speak the Tamil language and did so usually at home, though Sinhalese is his first language and he also speaks, as is evident before this Tribunal quite fluent English. It is noted that in his application, which appears in the Court book, that he did not refer to the Tamil language as a language spoken by him, and accordingly a finding by the RRT that the applicant does not "have the Tamil language in common with other Tamils who might be associated with the LTTE" is perhaps not a surprising finding of fact in the circumstances. Nevertheless, as part of the background material, I will accept in this application that the applicant does speak the Tamil language.
On 13 January 1999 the applicant applied for a protection visa. On 9 March 1999 a delegate determined the applicant was not a person to whom Australia had protection obligations and the application for the protection visa was refused. The applicant then sought review of the delegate’s decision to the RRT on 1 April 1999. The hearing was conducted on 20 June 2000, and by a decision dated 10 July 2000, the RRT affirmed the delegate's decision. On 1 September 2000 the applicant lodged his first application for judicial review in the Federal Court of Australia, (proceeding V670 of 2000). He relied on what is described as a ‘no evidence’ ground alleging that the RRT doubted his credibility on the basis that he was able to leave Sri Lanka on a passport issued to him when the evidence was that the passport was false.
On 12 December 2000 the applicant was granted leave to discontinue the proceedings in the Federal Court. He then joined the representative proceedings in the High Court, Muin v Refugee Review Tribunal (2002) 190 ALR 601. He subsequently filed an application for writs of prohibition and certiorari with the High Court on 14 May 2003 in respect of the RRT's decision. Those proceedings were remitted to the Federal Court and in turn further remitted to this Court. In fact, I heard and determined the matter and refused the order nisi on 18 March 2004 on the basis that the applicant had not established an arguable case for the grant of relief.
The applicant sought leave to appeal from a decision of this Court and on 18 May 2004, Gray J of the Federal Court dismissed the applicant's application for leave to appeal from my judgment and did so apparently on the basis of non-attendance of the applicant. I should indicate that during the course of submissions, I raised the issue of whether it was appropriate that I should further hear this application, and given the different nature of the application, albeit that I have determined that in relation to the application for order nisi there was no basis upon which an arguable case could be established for the grant of that relief. I am satisfied that I am not otherwise precluded from hearing and determining this further application, which I should indicate was filed on 9 June 2004 and subject to the amended application referred to earlier in this judgment filed 29 October 2004. Although issues have been raised in relation to Anshun estoppel and/or abuse of process, I am satisfied in the present case it is not necessary for me to consider the application, having regard to the principles which may apply in relation to either Anshun estoppel and/or abuse of process. I am prepared to deal with the matter on the substantive arguments advanced by the applicant on his own behalf.
The claim in this case of a well-founded fear of persecution is primarily a claim based upon the applicant's association with a Tamil person and as a result of being married to a Tamil. He claimed that as a result of his association he had been detained on a number of occasions and mistreated. The RRT found that there was not a real chance the applicant would be suspected of LTTE affiliations on the basis of his marriage to a Tamil, given his experiences before he left Sri Lanka and given the length of separation from his wife. He had been separated since 1992.
In the decision, it is clear on a proper reading of the RRT's findings that it has in fact dealt in some detail with the applicant's movements to and from Sri Lanka. Under the heading “Discussions and Findings”, which appears in the Court book commencing page 60, the RRT states the following:
“The Tribunal accepts that the Applicant is a Sri Lankan national who is outside his country of nationality, and that he is a practising Muslim from Colombo. It accepts that he was married to an ethnic Tamil person, but he had been separated for some eight years until a current attempt at reconciliation. Having also spoken with the Applicant's spouse, the Tribunal is satisfied that their marriage previously broke down in 1995, although they had been separated since around 1992, when the Applicant went abroad.”
The RRT goes on to state:
“It is plausible that the Applicant befriended a Tamil and assisted him to obtain a bank loan. On the basis of his own evidence, nothing ever happened to the Applicant as a consequence of that friendship until 1998 other than some neighbours writing graffiti on his house in 1983. That was immediately after serious race riots and the Applicant's friend had moved. The Applicant remained in that house until he sold it in 1993 and gave no evidence that indicates neighbours continued to harass him because of his friendship with (the person is then named).”
Further in the RRT decision, reference is made to the work of the applicant overseas. The RRT states the following:
“The applicant has worked overseas since 1991 and made many return trips to Sri Lanka for employment and recreational purposes. Those return trips are evidence that he lacked a subjective fear of persecution. The evidence that supports his claim that he is suspected of LTTE affiliations is that he was friendly with a Tamil who turned out to be an active LTTE member. If the Applicant was truly suspected of assisting the LTTE or genuinely sympathising with that group it is not plausible that the police would release him as he claimed, particularly as he says he had the requisite documentation to return to Saudi Arabia. Moreover, given that the Applicant could have fled to Saudi Arabia, it is not credible that he would have chosen to remain in Colombo at his usual address, at the mercy of the security forces and under threat of death, while he went about obtaining the documents needed to go to Australia. The fact that he did remain there leads the Tribunal to conclude he has exaggerated his claims about mistreatment at the hands of the authorities.
His application form says he left legally and had no trouble obtaining exit documents. His subsequent statement indicates he may have changed his name a little and sought to disguise himself.”
The Applicant’s explanation at the hearing demonstrated that he obtained a new passport by providing his old passport and his national identity card to the relevant authorities. The RRT goes on to refer to some country information and then further states:
“The Tribunal has no doubt that the Sri Lankan authorities genuinely issued the passport to the person they knew as the Applicant and that he passed through all the usual security procedures before he left the country using a passport that clearly identified him. The Tribunal is satisfied that the authorities had the means and opportunity to intercept him if they wanted to. The fact that they did not is strong evidence that they had no interest in him.”
In his amended application, the applicant claims that the RRT was wrong when it stated that it is not credible that he would have chosen to remain in Colombo at his usual address. Further it is argued that the RRT did not take into account the fact that although he left the country legally, he changed his name and disguised himself. Under the particulars of the first ground suggesting jurisdictional error the applicant claims there was no evidence for the RRT to come to the conclusion that he had greatly exaggerated the events surrounding the incident with his friend and he was not unduly held in detention and mistreated on many occasions. Reference is made to the various reports in relation to Sri Lanka.
During the course of submissions before this Court, apart from referring to the error concerning his ability to speak the Tamil language, the applicant otherwise referred to what he regarded as irrelevant information taken into account by the delegate concerning country information and the antagonism between Muslims and Tamils which I would accept he rightly regards as somewhat irrelevant in circumstances where he is married to a Tamil and speaks the Tamil language.
The respondent has submitted that in this case there is no basis upon which the Court should intervene and that there is no 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.”
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).
It is clear in my view, that on a proper reading of the RRT's decision it has embarked upon its fact‑finding mission in an appropriate manner free of jurisdictional error. The extracts from the reasoning of the RRT set out above in this judgment clearly demonstrate that the RRT had examined, as it was entitled to do, the claimed fear by the applicant, but in particular further examined in some detail those matters relied upon by the applicant in relation to the basis of the fear. It did in fact, contrary to the assertion of the applicant, consider the issue of the change of name. Perhaps more significantly it considered the issue of a passport and the travel of the applicant against the backdrop of the claimed fear of persecution. All of those matters, and others considered by the RRT, are matters of fact which are open to the RRT to consider. Any error of fact which has been identified in relation to the issue of language would not of itself, in my view, provide a basis upon which this Court can intervene. It would be simply an error of fact alone and not of itself provide a sufficient basis for this Court to conclude that there has been jurisdictional error. In any event, I am satisfied that that finding of fact in relation to the language was not of itself a significant finding in circumstances where the applicant himself agrees that use of the Tamil language was primarily confined to his home and not a language used outside the home where he was able to speak Sinhalese and/or English.
I otherwise accept the submissions made for and on behalf of the respondent that the RRT has properly considered the claims as put by the applicant before the RRT, has made findings that were reasonably open to it or findings which in the normal course of a hearing are findings which this Tribunal was entitled to make, and those findings are free of jurisdictional error. It follows, therefore, that the application should be dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 19 July 2005
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