MZWLM v Minister for Immigration
[2005] FMCA 1057
•21 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWLM v MINISTER FOR IMMIGRATION | [2005] FMCA 1057 |
| MIGRATION – Protection Visa – whether jurisdictional error. |
| Muin v Refugee Review Tribunal (2002) 190 ALR 601 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZWLM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 727 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr. W. S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed 10 June 2004 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 727 of 2004
| MZWLM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In this application, the applicant by an amended application seeks review of a decision of the Refugee Review Tribunal (“the RRT”) dated 24 November 2000. That decision of the RRT had affirmed a decision of a delegate not to grant to the applicant a protection visa.
The applicant is a 57 year old female Sri Lankan citizen who arrived in Australia on 18 November 1998 as the holder of a visitor visa issued in Hong Kong on 9 October 1998. On 8 December 1998 the applicant applied for a protection visa. On 6 January 1999 a delegate of the respondent determined the applicant was not a person to whom Australia had protection obligations, and refused the application. The applicant then applied on 27 January 1999 to the RRT for review of the delegate's decision. The hearing was conducted on 14 November 2000, and as I indicated earlier in this judgment, by a decision dated 24 November 2000 the RRT affirmed the delegate's decision.
On 24 April 2001, the applicant joined the representative proceedings in the High Court matter of Muin v Refugee Review Tribunal (2002) 190 ALR 601. The applicant subsequently filed an application for writs of prohibition and certiorari with the High Court on 15 May 2003 in relation to the RRT decision. Those proceedings were remitted to the Federal Court of Australia which in turn further remitted the proceedings to the Federal Magistrates Court. I made a decision in relation to the matter refusing the order nisi on 18 March 2004. That decision was the subject of an application for leave to appeal, given it was an interlocutory decision, and that application was refused by order of Crennan J of the Federal Court of Australia on 26 May 2004. On 10 June 2004 the applicant filed the present application for review and relies upon an amended application dated 13 October 2004.
The applicant appears before this Court unrepresented, though assisted by an interpreter. I had indicated in open Court that I have no difficulty with proceeding to hear and determine this substantive application, notwithstanding the fact that I have dealt with the interlocutory application in considering the application for order nisi for review. I do not see any reason why I should not in fact proceed to hear and determine this application, despite having made a finding in the interlocutory matter that there was no arguable case, and indeed on a previous occasion I referred to there being no jurisdictional error. Clearly the substantive application may, on a number of occasions, raise new material or indeed different material which requires different consideration of that material, and no doubt in some cases may result in an entirely different outcome.
The amended application before the Court, however, in this instance, whilst asserting jurisdictional error, on a proper reading of the particulars subjoined to the grounds of the application, in my view, may properly be characterised as an endeavour to reagitate facts which have been determined by the RRT. Although reference is made to the applicant disagreeing with findings, a simple disagreement with a finding is not of itself sufficient to justify judicial review of a decision of this kind. Reference made to the selection of country information and/or the reliance upon that information as a means by which the RRT in this case has sought to provide in part a basis for rejecting claims by the applicant, again does not of itself, in my view, provide a sufficient basis upon which the RRT decision can be the subject of judicial review.
In very brief terms, the nature of the claim by the applicant before the RRT is adequately set out in the respondent's submissions in the following terms: in substance the applicant claimed that she had been a member and subsequently a supporter of the United National Party, (“the UNP”) in Sri Lanka. As a consequence of activities undertaken by her as a UNP member supporter, she claimed she had been persecuted by members and/or supporters of the opposition party, the Peoples Alliance Party, (“the PA”). The PA had defeated the UNP government in Sri Lanka in the 1994 general elections. She also claimed a fear of persecution from members and/or supporters of the Janatha Vimukthi Peramuna Party, (“the JVP”), and a fear of persecution as a consequence of her association and friendship with some Tamil UNP supporters. The RRT was not satisfied that the applicant had a well-founded fear of persecution as a consequence of any of these or any relating claim.
Before this Court, the applicant, who as I have indicated is unrepresented, has sought to rely upon contentions of fact and law dated 13 October 2004. Annexed to those contentions are a number of documents seeking to refer to the difficulties and problems which are apparent in Sri Lanka. In addition to that material, the Court in the absence of objection from the respondent, has also noted a letter dated 19 July 2005 from the applicant's parish priest which sets out confirmation of the applicant's current circumstances and otherwise seeks to support this application. The applicant herself has, I accept, a desire not to return to Sri Lanka and has expressed to this Court her fear of returning to Sri Lanka.
As I indicated at the outset of this hearing, the role of this Court is not to rehear the facts relied upon by the applicant but rather to determine whether as a matter of law there is any basis upon which this Court can properly exercise the discretion it has upon judicial review to set aside the 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).
I also note and apply further authorities relied upon by the respondent in relation to what in this case is clearly a fundamental finding as to credibility of the applicant by the RRT. The assessment, it is argued, of credibility of an applicant, is a matter for the RRT, and to that extent I apply the statement of Crennan J in the matter of Woods v Migration Agents Registration Authority (2004) FCA 1622 where at paragraphs 55 and 56 her Honour states:
“55The reasons of an administrative decision-maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272. Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152]. Where a tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J. It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62]. This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal. It is not a jurisdictional error for an administrative decision-maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing).
56 A Tribunal is not required to set out in its reasons a line-by-line refutation of the evidence led by the applicant which is contrary to its findings or conclusions: see Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 at 422-423 per McHugh J. The Tribunal had regard to the evidence and made findings of fact, which were open to it and were not perverse. The Tribunal undertook the task of determining the facts without error in accordance with the principles referred to in the abovementioned authorities.”
Likewise, I accept that as a matter of law and apply the extract from the decision of the Full Court of the Federal Court of Australia in the matter of NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 167 paragraph 9:
“9The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
In applying those authorities to which I have referred to the decision of the RRT in the present case, and having regard to the grounds relied upon in the amended application supported by the contentions of fact and law of the applicant, I am satisfied that essentially in this application the applicant joins issue with the fact finding of the RRT and in particular disputes that there was any or any proper basis upon which the RRT either in assessing the applicant's own credibility and/or in combination with that assessment relying upon the country information, should reject the applicant's claim. However, that process by the RRT is a process which, in my view, having regard to the authorities to which I have referred, is one which is reasonably open to the RRT. It is not necessary for me to recite in detail each and every one of the disputes raised by the applicant in relation to the RRT decision, save and except that in each instance there seems to be disagreement or challenge to the finding of fact and/or a challenge as to the method by which the RRT embarked upon its task of assessing credibility and relying upon country information.
On my reading of the RRT decision, and having regard to the authorities to which I referred, I cannot see any error of a kind made by the RRT which would encourage this Court to interfere with the decision. I accept that the RRT is not required to set out in minute detail all of the factors taken into account in reaching findings which were then open to it, and nor does it have to set out in detail each and every factor which led it to an adverse conclusion in relation to the applicant's credit on significant issues then before it. In this case there is sufficient in the RRT decision to discern the path of reasoning followed which ultimately led it to affirm the decision of the delegate who had then rejected the application for a protection visa.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 21 July 2005
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