MZWOB v Minister for Immigration
[2005] FMCA 310
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOB v MINISTER FOR IMMIGRATION | [2005] FMCA 310 |
| MIGRATION – Protection Visa – refusal to grant adjournment – application for legal aid rejected – no prospect of representation – no jurisdictional error – possibility of relocation. |
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasinghan (2000) 168 ALR 407
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | MZWOB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 854 of 2004 |
| Delivered on: | 17 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr R.C. Knowles |
| 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 $5,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 854 of 2004
| MZWOB |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant appears unrepresented. It is clear that the application which was filed on 29 June 2004 seeks to review a decision by the Refugee Review Tribunal (the RRT) in relation to an application for a protection visa. The RRT decision dated 7 May 2004 was handed down on 28 May 2004.
In the application before this Court, the grounds of the application are sparse. They simply refer to the Tribunal failing to properly construe well-founded fear of persecution or wrongly construing the meaning of persecution. On 20 October 2004 a Registrar ordered that the applicant should file and serve an amended application containing proper particulars of the grounds relied upon, if any, by 24 December 2004. Further orders were made that the applicant file and serve contentions of fact and law by 8 January 2005. The matter was otherwise then listed for hearing on 1 March 2005. No further documents have been filed and served by the applicant. The respondent has relied upon contentions of fact and law filed on 16 February 2005.
The applicant sought further time in which to obtain legal assistance to present in writing an outline of contentions, or as I understood it, any amended application as otherwise required by the orders of the Registrar. He explained that he had made application for legal aid, and in early January this year, that application had been rejected. He was unable to indicate any further action he had taken in order to obtain legal assistance. In the circumstances, I ruled that the matter should not be adjourned but rather should proceed this day, even though the applicant is unrepresented and has not filed material in compliance with the orders made by the Registrar on 20 October 2004. In my view, the applicant has had sufficient time to arrange legal representation, and the fact that he has had an application rejected by the Legal Aid Commission, would mean, in my view, that it is highly unlikely that he would be successful in obtaining legal assistance, and given the matter was listed in October for a hearing in March 2005, I am satisfied the applicant has had adequate time to address the issues.
I further made due allowance for the fact that the applicant was unrepresented and permitted him to raise what effectively might potentially constitute jurisdictional error. The two areas agitated by the applicant include primarily that the RRT had not properly considered his case as put by the applicant, and secondly that a suggestion by the RRT in its findings that the applicant could live elsewhere, other than the place where it is claimed persecution occurred, was not a valid exercise of the RRT's jurisdiction and/or constituted 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.”
The respondent submitted that in the circumstances the grounds of the application are not made out and that the RRT had not failed to properly construe well-founded fear of persecution or the meaning of persecution. It is clear to me on a proper reading of the RRT decision that it has in fact adopted and applied the appropriate meaning to the concept of a well-founded fear of persecution and the meaning of persecution in its decision, and I cannot see any error in the way it has applied the relevant principles.
In relation to the issue of whether it has failed to address the case as put by the applicant and/or has wrongly concluded that he is able to locate elsewhere upon his return to Nigeria, it is appropriate to set out the background facts and circumstances, including a case as put by the RRT and its decision.
The applicant, who is a Nigerian citizen, arrived in Australia on a three-month visitor visa on 24 January 1998. On 4 March 1998 he applied for a family residence class AO visa, subclass 806, nominated by his brother who was unwell and who passed away on 30 January 1999. The applicant continued with his subclass 806 application, because he believed that his late brother's children needed his support. The application was refused and that decision was subsequently affirmed by the Migration Review Tribunal on 12 June 2001. Thereafter on 13 July 2001 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for a protection visa. In his application, the applicant claimed that by reason of his involvement with a religious organisation called the Brotherhood of the Cross and Stars (BCS) there was a real chance that if he returned to Nigeria in the foreseeable future he will be persecuted by people who believed that he was involved in witchcraft.
In a decision dated 11 January 2002 a delegate of the respondent refused to grant the protection visa application. On 25 January 2002 the applicant lodged with the RRT the application for review of the delegate's decision. As I indicated earlier, the RRT delivered its decision affirming the delegate's decision by a decision dated 7 May 2004 handed down on 28 May 2004. A hearing was conducted by the RRT on 30 April 2004, and at that hearing the applicant appeared and submitted two letters purportedly sent to him by his sister (See court book pages 60-61). Both letters appear to have been sent from Nigeria. The letters generally stated that people were looking for the applicant and that he should not return to Nigeria because these people wished to harm him or kill him.
It is perhaps significant to note during the course of this hearing that the applicant was concerned that should he return to Nigeria, and even to a different town, he would be tracked down and his whereabouts discovered with the consequence as claimed that he would be harmed or killed.
In the respondent's facts and contentions, the claims of the applicant have been appropriately summarised based upon the material which was before the RRT. In particular, it is noted that the applicant in the original application, (Court book pages 6 – 9) sets out relevant details in support of his application. Those details would appear to be further advanced in the interview process which occurred between the applicant and the delegate, and a summary of the claims appears in paragraph 3.1.3 of the decision record (Court book at page 39-40). Those details, together with the letters from the applicant's sister, are then set out in some detail by the RRT in its decision under the heading "The Applicant's Claims".
The summary of the respondent in its contentions of fact and law appears to me to be an accurate and fair summary of the matters raised by the applicant, both in the initial application and subsequently to the delegate and the RRT. The claims may be summarised as follows:
a)The applicant was a member of the BCS;
b)As a result, members of his community suspected and accused him of practicing witchcraft;
c)In 1996, the applicant was twice accused of causing the deaths of teenage boys who died in their sleep;
d)In 1997, after the boys deaths, the applicant was beaten up twice;
e)In the applicant's community, the punishment for witchcraft was amputation of the suspect's right finger;
f)Six months before his departure for Australia, the applicant moved from his village Enugwu Abo, to the capital of his home state Enugu;
g)During these months, the applicant lived with his wife and children but remained inside and hid by sleeping at friend’s houses;
h)The applicant had a brother living in Australia and, since his arrival in Australia, the applicant's brother passed away in January 1999;
i)The applicant was planning to take his brother's body back to Nigeria but his wife informed him that the applicant's community had conducted a meeting at which it was concluded that the applicant must have used his brother for religious rituals and the community wished to “get rid” of the applicant;
j)The applicant's father, who was an influential person in Enugwu Abo, died in January 2004 and could no longer provide the applicant with protection if he returned;
k)The authorities would not protect the applicant because they did not interfere in “religious and traditional issues”;
l)Although the applicant had reported his concerns to the authorities, they did not do anything;
m)When the applicant first arrived in Australia, he applied, on the advice of members of the Nigerian community in Australia, for a special need relative visa in respect of his brother (rather than a protection visa).
In relation to the last claim, it should be noted that the applicant before this Court sought to explain further why he did not make application for a protection visa initially. It is clear from the RRT decision that it had noted the fact that the applicant had not indeed made the application for a protection visa initially. Indeed, the RRT specifically refers to the statement by the applicant that when he arrived in Australia his brother was ill and so he decided to apply for a special needs relative visa rather than a protection visa. The RRT in its decision and in making its findings specifically referred to that issue in the following terms:
“The applicant has claimed that the reason he came to Australia was for protection and not to look after his ailing brother. Against that background, that he did not seek a protection visa until after the appeal against the decision to refuse him a carer's visa was finalised, does not assist the assessment of the genuineness of his claim for fear of persecution in Nigeria”.
My interpretation of that passage is that, the RRT did not find that the failure to seek a protection visa initially would assist in the assessment of the genuineness of the claim of fear of persecution in Nigeria. It may be that an alternative interpretation was simply that it did not assist the applicant's claim of fear of persecution in Nigeria. If it is the latter interpretation, then it nevertheless remains an interpretation reasonably open to the RRT, though for present purposed, I am prepared to accept that the former interpretation is more appropriate and that this was not a significant factor in the ultimate determination of the application. In any event, as indicated, I do not accept that if the finding was a specific adverse finding that it would of itself provide a basis upon which I could conclude that there has been a jurisdictional error.
In considering the applicant's case, the RRT made a number of what might be described as significant findings. Those significant findings again were fairly and accurately summarised in the respondent's contentions of fact and may briefly be stated as follows:
a)The applicant had been a follower of the BCS for several years, gave the BCS land and tried to encourage others to join the BCS;
b)Due to inconsistencies in the applicant's evidence, belated claims first raised at the Tribunal hearing, and the late lodgement of his protection visa application, the applicant's claim of being accused of witchcraft in the connection with the deaths of two boys and his brother “may be untrue”;
c)Even if the applicant was so accused, there was not a real chance that he had faced being seriously harmed or killed because of these accusations or that he would face such danger if he were to return to Nigeria because:
i)it was not accepted that the applicant was beaten in 1997;
ii)it was not accepted that the applicant was sought in Enugu and Lagos before his departure for Australia;
iii)it was not accepted that people came fiercely looking for the applicant at the time of his father's funeral;
iv)nothing serious happened to the applicant before he left Nigeria for Australia at the beginning of 1998 (more than one year after he claimed that the witchcraft accusations were made) because nobody was looking for him;
v)country information indicated that, in Nigeria punishment for witchcraft was meted out instantly and that had not occurred according to the applicant's account;
d)There was therefore not a real chance that the applicant would face persecution because he was accused of witchcraft in connection with the deaths of the boys in Enugwu Abo and his brother in Australia;
e)In any event, it was reasonable for the applicant to relocate elsewhere in Nigeria and thereby avoid any harm which he claimed to fear.
It is noted in that summary that there is a suggestion that the RRT made an adverse finding in part based upon the late lodgement of the protection visa application, and subject to my earlier comments in relation to that issue, the summary appears to be fair and accurate of the Tribunal's findings. It is further noted, that in considering the issue of relocation, the RRT has appropriately referred to leading authority on the issue, namely the decision of the Full Court of the Federal Court in the matter of Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 Black CJ 440-1. That case is authority for the proposition as stated by the RRT that even if an applicant has a well-founded fear of persecution in the home region, the convention does not provide protection if they could nevertheless avail themselves of the real protection of their country and nationality elsewhere within that country, and it is further authority of the proposition that that principle only applies to people who can genuinely access domestic protection and for whom the reality of protection is meaningful. If relocation is not a reasonable option in the particular circumstances, it may be said that in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded (see Randhawa Black CJ 442-3, Beaumont J 450-1). In my view, the RRT has correctly summarised the principles from that decision.
On a proper assessment of the RRT's reasoning, it has dealt effectively with the case as put by the applicant. One specific issue raised by the applicant before this Court is the issue of whether or not he would be located at another town if he were to return to Nigeria. It is clear to me, on a proper reading of the RRT's reasoning that it has considered that issue, as it referred to what might happen to the applicant if he returned. It specifically rejected the applicant's evidence that people "would track him down".
The RRT otherwise specifically addressed each and every one of the issues raised by the applicant, both before the Tribunal and in any other material to which reference was made earlier in this judgment. It has, in my view, addressed the case as put by the applicant substantially before the RRT, though of course made significant adverse credibility findings, against the applicant. Those credibility findings in applications of this kind are what are often described as an assessment made by a tribunal ‘par excellence’ (see Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasinghan (2000) 168 ALR 407 [67]).
I accept that in an application of this kind, the assessment made as to the credit of the applicant, clearly falls within the jurisdiction of the RRT. I further accept, as submitted by the respondent, that it was not for the RRT to make the applicant's case for him (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]). There was no general duty on the part of the RRT to seek additional material from the applicant or some other source to remedy any deficiencies in the applicant's case.
In general terms, the findings concerning the applicant experiencing harm if returned to Nigeria do not disclose any error of a kind which would justify judicial review. The findings adverse to the applicant were, in large part, findings in relation to credit which were findings reasonably open to the Tribunal and not findings which should be the subject of intervention by this Court.
It follows, for the reasons given, that the application should be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 March 2005
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