MZWNF v Minister for Immigration
[2005] FMCA 470
•16 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNF v MINISTER FOR IMMIGRATION | [2005] FMCA 470 |
| MIGRATION – Protection Visa – adjournment refused – not appropriate where intention to provide further facts. |
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
Abebe v Commonwealth of Australia (1999) 162 ALR 1
| Applicant: | MZWNF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 798 of 2004 |
| Delivered on: | 16 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 February 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr S Hay |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6400.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 798 of 2004
| MZWNF |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (the RRT) delivered on 12 May 2004. The RRT had affirmed a decision of a delegate to refuse an application for a protection visa. The applicant appears in this Court unrepresented. He has relied upon a document entitled “An Amended Application and Contentions of Fact and Law”. That document was filed on 14 January 2005. He has otherwise made brief submissions in support of the application. The respondent has adopted submissions in writing entitled “Respondent's Contentions of Fact and Law” filed in this Court on 16 February 2005.
At the commencement of this application the applicant sought an adjournment in order to obtain further information from India to support his application. I refused that application and provided reasons for the refusal as follows:
“In this application, the applicant has sought to adjourn further hearing of the matter and has indicated to the court, perhaps understandably, that it is his desire to obtain further information from India by way of what might be described as an update of the country information. During the course of exchange with the applicant, I had indicated in brief terms the role of this court on judicial review of a decision of the Refugee Review Tribunal and that I could not see how an adjournment could be justified if the purpose of the adjournment was to obtain further up-to-date material from India, which essentially seems to me would only result in factual material being provided to this court which would not in the circumstances be appropriate. Nor would it be appropriate for this court to embark upon a review of the facts or indeed what might be described as merit review as there is ample authority to indicate that it is not the court's rule to pursue a review of this application in that manner. For those reasons the application for adjournment is refused”.
Apart from those reasons for the refusal of the application for adjournment, it should be noted that during the course of submissions the applicant further sought time in which to present further material to the Court. It is clear to me that on an application of this kind, it is inappropriate of this Court to delay the hearing of an application on the basis that an applicant seeks to obtain further information and for the reasons already given and incorporated in this judgment in relation to the refusal of the application for adjournment, it is clear that it would be inappropriate in this particular instance to permit further information to be provided to this Court which could only lead to what might be described as a fact‑finding process or a merit review process, which is not permissible in an application of this kind.
By way of background the applicant is a citizen of India. He arrived in Australia on 30 March 2003. On 28 April 2003 he lodged an application for a protection visa. He claimed that he had a well‑founded fear of persecution on the basis of his religion in the hands of Hindu extremists in Government Authorities. A delegate of the respondent on 29 May 2003 refused the protection visa of that application. The decision of that delegate was then affirmed by the RRT in a decision made, as indicated, on 12 May 2004. The applicant, upon receiving the RRT decision then made application for judicial review to this Court.
I accept that the document which was relied upon entitled “An Amended Application and Contentions of Fact and Law” does not strictly comply with the requirements of orders made by a Registrar of this Court on 20 October 2004 that the applicant should file and serve an amended application containing proper particulars of the grounds relied upon. It is clear that the document seeks to advance further arguments of a factual nature and/or seeks to agitate further factual issues which the applicant believes provides a basis upon which he can feel aggrieved by the RRT decision. Nevertheless, I am prepared to take the document into account and the arguments set out in the document as at least providing some basis upon which the concerns of the applicant are expressed. I accept that the applicant has a genuine concern about the outcome of the RRT decision.
It is clear that the RRT in considering the applicant's application made certain factual findings which, in the circumstances, are not accepted by the applicant. It specifically made findings in relation to the applicant's capacity in any event to relocate within India in order to avoid the treatment which was the subject of his complaint. The Respondent referred to the following paragraphs of the Tribunal’s decision:
“The applicant has claimed that people in Shiv Sena and other extremist gangs were looking for him. If this is so and as I said to the applicant at the hearing, then it seems to me that the applicant could avoid the trouble he fears they may give him – harassment, vandalism, provocation to fight and the chance of coming to physical harm, and extortion demands – by moving to live elsewhere. He said that his family are living safely in the countryside some way from Mumbai.
…
Other factors which the applicant indicated mean that the could not go to live in the area where his family is now seemed to me to concern nothing more than unwillingness not related to a well-founded fear of being persecuted. He talked about fearing that he could face the same kind of harassment he had experienced in Mumbai; that he no longer wanted to live anywhere in India; that he had started a new life here; and that life would be miserable there. These kinds of considerations, important as I accept they are to the applicant, do not enliven Australia’s protection obligations. In coming to this view, I have had regard to the reasoning of the Full Federal court in Abdi v MIMIA (2000) FMC 242 (10 March 2000)”.
Those extracts in my view, on a proper reading of the decision of the RRT give some insight into the reasoning process of the RRT. Although the issue of residing elsewhere in a country to avoid the harm complained of should not automatically be regarded as an option to be imposed upon an applicant, I am satisfied in the present case that the factors taken into account, including the residence of the applicant's family living elsewhere in the countryside in India, was a relevant factor to take into account and in the circumstance of this case in that reasoning process, having regard to those matters and also country information that the RRT has embarked upon its fact‑finding process in an appropriate and proper manner and, more importantly, in a manner which would not attract judicial review.
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”.
It is clear to me that on reading the applicant's application and contentions of fact he expresses strong concerns about the country information relied upon by the RRT, in preference to his own evidence concerning the situation in India. That choice by the RRT is a choice that is reasonably open to it and it is clear in a case of this kind, that as a matter of law it is not appropriate for this Court to interfere in that fact‑finding process (See Abebe v Commonwealth of Australia (1999) 162 ALR 1.
Although there is some reference in the applicant's application to what might be described as a failure to act in good faith, I do not regard that as an assertion in general terms of a failure to act in good faith but rather that the RRT had made a decision relying on country information in preference to the applicant's own evidence. Although expressed in terms that the tribunal did not "act in good faith in regards to my claims", I do not regard that as a general attack on the Tribunal for lack of bona fides. Indeed, any attack of that nature is one that could not possibly succeed on the material before me having regard to the relevant authorities in relation to the issue of a lack of good faith.
I regard the reference to good faith therefore as part of the arguments in support of the contention that the applicant's evidence was not preferred over the country information evidence.
On a proper analysis of material, the RRT has in fact simply made an analysis of the facts and has sought to consider the facts based on the material before it, including material provided by the applicant, and ultimately has not accepted the applicant's case. It has done no more than discharge its duty as a fact‑finding Tribunal. The application before me on a proper reading of the material in my view seeks to re‑agitate the factual issues and to do that in an application of this kind is not permissible and would not provide a sufficient basis upon which this Court should interfere with the decision by way of judicial review.
Accordingly, it is appropriate that the order of the Court be that the application be dismissed. I shall further order that the applicant pay the respondent's costs, which I fix in the sum of $6400.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 February 2005
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