MZWMW v Minister for Immigration

[2005] FMCA 798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWMW v MINISTER FOR IMMIGRATION [2005] FMCA 798

MIGRATION – Appeal from Refugee Review Tribunal – refusal to grant protection visa – religious persecution – no error of law – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 474

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Applicant: MZWMW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 785 of 2004

Judgment of: Connolly FM

Hearing date: 6 May 2005

Date of Last Submission: 6 May 2005

Delivered at: Melbourne

Delivered on: 16 June 2005

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Ms Moore

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 785 OF 2004

MZWMW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This judgment arises from an application filed by the applicant on

   
   

   18 June 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 22 April 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa.

The history

1. The applicant claims to be a national of Indonesia.  She came to Australia on 1 September 2002 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 9 October 2002.

2. On the applicant’s protection class visa application dated 8 October 2002, the applicant states she was born in the People’s Republic of China (‘PRC’), is a Christian and of Han ethnicity.  In a statement attached to her application, the applicant claimed that she was born in Indonesia, returned to China for a period of time before returning to Indonesia to reside.  The most recent affidavit filed by the applicant (on 18 June 2004) states that she was born in Indonesia and is an Indonesian citizen.  The applicant claims that she fears persecution for religious reasons in Indonesia.  The applicant described an incident in June 1998 in Jakarta during which armed people entered a Chinese church where the applicant was praying, destroyed parts of the church, threatened people and raped some of the women present.  It was this incident that, according to the applicant, caused her to have suicidal thoughts and to be fearful of attending church.  The applicant also stated: “Relying on their numbers the Muslim people attacked us every where, burned my house, my factory, and facing this cruel environment”.

3. On 11 November 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 3 December 2002. 

4. In the decision made by the Tribunal on 22 April 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. Specifically, the Tribunal:

   (a)held that despite contradictory claims as to her place of birth, the applicant was born in the PRC and holds Indonesian citizenship;

   (b)held that since the applicant had made no persecution claims against the PRC, and had the right to re-enter the PRC, she could not succeed in her application for refugee status;

   (c)was not satisfied as to the applicant’s claims about persecution in Indonesia, including the alleged church attack, with the Tribunal describing the applicant’s claims as “unreliable” on several occasions; and

   (d)ultimately held that the applicant’s claims failed on credibility grounds and that she did not have a well-founded fear of persecution.

5. On 18 June 2004, the applicant lodged an application in this Court, being MLG 785 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant filed an amended application on 7 January 2005. The applicant sought constitutional writs and asserted that the Tribunal had fallen into jurisdictional error by not finding that the applicant, as an ethnic Chinese Christian, had a well-founded fear of persecution by Indonesian Muslims. She again cited the incident which occurred in the church in June 1998. In the applicant’s contentions of fact and law, filed on 7 January 2005, these claims were reiterated.

6. The respondent’s contentions of fact and law, filed on 23 February 2005, rebutted the applicant’s claims, arguing that the Tribunal did not err in law and thus did not make a jurisdictional error.  According to the respondent, the Tribunal’s decision was open to it on the evidence before it and it was entitled to make the credibility findings that it did.

The law

1. Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:

   …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

2. The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)   that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution;   and

   (b)   the persecution involves serious harm to the person; and

   (c)   the persecution involves systematic and discriminatory conduct.

   (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person's life or liberty;

   (b)    significant physical harassment of the person;

   (c)   significant physical ill-treatment of the person;

   (d)   significant economic hardship that threatens the person's capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

3. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.

4. An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).

Conclusions and findings

1. The contentions filed by the applicant on 7 January 2005 do not disclose any allegation of error of law.  They merely repeat in summary form what was put to the Tribunal.  The onus is on the applicant to make out all of the statutory elements of the claim.  Secondly, it is for the applicant to provide to the Tribunal the facts which support her claim.  Finally, the Tribunal is not required to uncritically accept any or all of the allegations made by the applicant.  In this case, the Tribunal was critical of the applicant’s evidence in its decision and did not accept much of what she claimed for the reasons set out in its decision.  Finally the Tribunal made findings about the applicant’s credit based on inconsistencies in a number of aspects of the applicant’s evidence.  These findings were open to the Tribunal. 

2. The respondent submitted that there was no error of law let alone jurisdictional error disclosed by the Tribunal.  I accept that submission. The Tribunal’s decision was open to it on the evidence before it and it properly addressed the applicant’s claims.  The Tribunal is a fact finding body and its findings of fact cannot be reconsidered by this Court.

3. In summary, I am satisfied that the applicant is unable to disclose any jurisdictional error that has been made out.  The application should be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:  N. Lane

Date:  16 June 2005