MZWMN v Minister for Immigration
[2005] FMCA 1134
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWMN v MINISTER FOR IMMIGRATION | [2005] FMCA 1134 |
| MIGRATION – Protection visa – whether jurisdictional error. |
| RDR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZWMN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 772 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave is granted to the applicant to add the Refugee Review Tribunal as a second respondent in these proceedings nunc pro tunc.
The Second Respondent be granted leave to file a Notice of Appearance in court this day.
The Application as amended be dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 772 of 2004
| MZWMN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant by an application filed on 18 August 2004 seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 22 April 2004. The tribunal had affirmed a decision not to grant a protection visa to the applicant made by a delegate of the first respondent. The applicant who is unrepresented appears before this court with the assistance of an interpreter and relies upon the application to which I have referred, together with contentions of fact and law filed 13 October 2004.
By way of background, it is noted that the applicant is a citizen of the People's Republic of China. She arrived most recently in Australia on 1 March 2003, and on 11 April 2003 lodged an application for a protection visa. A delegate of the first respondent refused the application on 30 September 2003 and thereafter the applicant lodged an application for review with the RRT on 27 October 2003. As
I indicated, a decision was made by the RRT dated 22 April 2004 affirming the delegate's decision not to grant the applicant a protection visa. Thereafter the applicant filed an application in this court seeking review of the RRT decision. That original application was filed on 17 June 2004. As indicated, the application relied upon in this hearing is the amended application filed 18 August 2004.
At the hearing conducted by the RRT on 16 April 2004 the applicant was assisted by an interpreter and otherwise represented by what appears to be an agent. She claimed on the basis of her political opinion as a member of the Alliance for Democracy and imputed religious adherence to Falun Gong that she faced a real chance of persecution by the Chinese authorities. Specifically she claimed that in 1986 she joined the Alliance for Democracy and that shortly before the 1989 Tiananmen Square massacre she and other members of the Alliance for Democracy participated in a protest. After the Tiananmen Square massacre she was arrested and detained by authorities for two months. After her release she was removed from her position as a member of the District People's Congress. In early 2000 the applicant attended a Falun Gong sitting to support members of the Alliance for Democracy who were also Falun Gong adherents. She was subsequently arrested and detained by the authorities for eight days before being released without charge. In April and October the applicant claimed the authorities again detained her and warned her not to become involved with Falun Gong, and as a result of adverse attention from the authorities the applicant claims she was denied career advancement opportunities.
Those claims were considered by the RRT and it concluded the applicant did not face a real chance of persecution of the authorities if she returned to the People's Republic of China. It is fair to conclude that the RRT had ultimately made findings of an adverse nature in relation to the applicant's credibility, and specifically in making those findings referred to what were claimed or found to be contradictions between on the one hand claims of persecution and on the other a long‑term and high‑level government employment and specifically referred to the applicant's ability to depart China on three occasions lawfully. It made specific findings, accurately set out in the respondent's contentions, in relation to the following matters:
a)the applicant was not a member of the Alliance for Democracy;
b)the applicant had provided insufficient evidence to establish what, if anything, befell her after the Tiananmen incident;
c)the applicant was not detained and harmed for any activities in relation to and following the Tiananmen massacre;
d)the applicant's career advancement had not suffered or been held back by reason of her claimed activities;
e)the applicant's removal from the District People's Congress was not connected with her claimed activities;
f)on the basis of problems with the applicant's evidence, the claimed detentions in 2000 did not occur;
g)there was not a real chance that the applicant would be persecuted by reason of her political opinion, real or imputed, her religion or any other convention reason if she returned to the People's Republic of China.
Both before this court and in her contentions of fact and law the applicant in my view appears to challenge the substantive facts as found by the RRT and in particular in her application has taken issue with the RRT's conclusion about her credibility. Specifically before this court the applicant drew attention to the finding by the RRT that she interprets as being a finding that she was in fact the owner of a company when in fact she asserts she was only a senior technical officer, and otherwise made findings in relation to her first visit to Australia being referred to as an official visit. It is perhaps relevant to note that under the heading ‘Findings and Reasons’ (court book page 95), in dealing with the issue of the official nature of the first trip the tribunal states the following:
“The Tribunal has serious concerns about the credibility of the applicant based on the fact that she travelled to Australia a total of three times and only after the third trip did she apply for a protection visa. The harm she complains of as constituting persecution occurred before her first trip to Australia. When asked, the applicant did not provide any cogent explanation for this delay: she stated how Australia is different to the PRC. The Tribunal also asked the applicant how, given her claimed history with the authorities, she was able to get her passports issued, the last one on 4 September 2002. She did not provide answers to this issue either and stated that the first time she travelled to Australia she was on a delegation from her work unit. The Tribunal finds that the apparently official nature of her first trip makes it more improbable that the applicant had any history of adverse contact with the authorities as her travel permit would have been subjected to quite close scrutiny.”
In its decision the tribunal in dealing with the role of the applicant further states at page 96 of the court book as part of its findings and reasons the following:
“… She stated that she was in charge of water treatment and information in her PV application form indicates a substantial salary. She claims that she was removed as a member of the District People's Congress. She also stated that this was an elected position and the Tribunal finds that her ‘removal’ also coincides with her move to Nanjing. The Tribunal accepts that she was at one point no longer a member of the District People's Congress but it does not accept any connection between this event and her activities in relation to the Tiananmen incident. Given the fact that the applicant has documented a substantial career, is in charge of a whole portion of a state enterprise, was chosen to participate in a business delegation overseas, the Tribunal does not accept that the applicant was detained and harmed for activities in relation to and following the Tiananmen incident. …”
It goes on to find that it does not accept that she is a member of the Alliance of Democracy. That finding which I have recited in the reasons for this judgment appears to be challenged as a factual finding by the applicant. It is not necessarily clear to me that it is in fact an incorrect finding of fact, but nevertheless that challenge together with the other challenges made to the decision by the RRT are submitted by the respondent in any event to be findings of fact and credibility within the jurisdiction of the RRT and not within the jurisdiction of the court (see RDR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 at paragraph 9, and Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at paragraph 67).
It is further submitted by the respondent that effectively the applicant both before this court and in the submissions in writing seeks to engage in merits review which should not be permitted (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
It is submitted that there is no jurisdictional error in this instance. Even if it were to be conceded, and it is not conceded, there was a wrong finding of fact, that of itself would not constitute an error of law of a kind which would justify a judicial review (see Abebe v Commonwealth (1999) 197 CLR 510 at paragraph 137, and Waterford v Commonwealth of Australia (1987) 163 CLR 54 at page 77). Ultimately it is submitted that the applicant has not demonstrated any proper basis for criticism of the process adopted by the RRT or its decision or has failed to show how there is no evidence in support of the tribunal's findings.
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).
In the present case, having considered the reasons for the decision of the RRT, it is clear to me that the applicant seeks to effectively challenge the fact‑finding process and/or conclusions reached by the RRT. However, those facts I am satisfied involve an assessment of the material before the RRT and conclusions which were reached clearly adverse to the applicant, including adverse findings as to credibility. Those findings were reasonably open to the RRT and I cannot see any error of law in reaching those findings which would persuade this court to intervene or to make a finding that there has been any jurisdictional error. In those circumstances, whilst appreciating the concerns the applicant has in relation to the adverse findings and that the RRT has affirmed the delegate's decision to refuse a protection visa, it is my concluded view that there is no error of a kind which would justify judicial review and accordingly the application as amended should be dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 July 2005
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