MZWOG v Minister for Immigration
[2005] FMCA 651
•25 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOG v MINISTER FOR IMMIGRATION | [2005] FMCA 651 |
| MIGRATION – Protection Visa – no jurisdictional error – whether abuse of process – previous order in Federal Court dismissing application where no appearance. PRACTICE AND PROCEDURE – Application pursuant to Rule 13.11 of the Federal Magistrates Court Rules 2001 refused – previous decision not sufficient basis for finding that Applicant habitually persistently and without reasonable grounds instituted vexatious proceedings. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko–Wallsend Ltd (1986) 162 CLR 24 NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 Randhawa v MILGEA (1994) 52 FCR 437 |
| Applicant: | MZWOG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 880 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 5 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 25 May 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr T. Mosby |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application as amended on 26 April 2005 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 880 of 2004
| MZWOG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant, who is unrepresented, relies upon an amended application filed on 26 April 2005. The applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) made on 20 February 2003 whereby it affirmed a delegate's decision refusing the applicant the grant of a protection visa.
It is relevant to note the background and chronology in this matter. The applicant is a citizen of India who arrived in Australia on 21 April 2001. On 5 June 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Department refused the application on 22 August 2001. The applicant then made application to the RRT for review of the delegate's decision. The RRT in reviewing the delegate's decision had informed the applicant's adviser to complete a new application form and this was subsequently filed on 4 October 2001. The applicant was invited to give evidence before the RRT and did so with the assistance of an interpreter. The initial hearing date had been delayed due to the medical condition of the applicant. Ultimately, on 9 January 2003 the applicant, accompanied by an adviser, with the assistance of the interpreter gave oral evidence to the RRT. The RRT in turn sought further particulars of information from the applicant to assist it in its deliberations. Ultimately, as indicated, it handed down a decision affirming the delegate's decision to refuse a protection visa.
In this matter the applicant had filed an application in the High Court seeking constitutional writs in relation to the decision. He did that on 23 April 2003 and at the time was represented by a solicitor. That application, which I shall refer to as the first application, was subsequently remitted to the Federal Court in proceedings number V 865 of 2003 by order of Hayne J of the High Court made on 1 August 2003. On 8 October 2003 Marshall J of the Federal Court made orders in that Court setting out a procedural timetable. The applicant's solicitors filed and served a copy of an amended application dated 19 November 2003, together with contentions of fact and law and a copy of the notice of solicitor ceasing to act dated 20 November 2003. The respondent filed and served contentions of fact and law dated 17 December 2003 and the matter was set down for hearing on 16 June 2004.
On that date the applicant contacted the Court and had explained he would be unable to attend the hearing due to a medical condition. He had advised the Court that he would fax a medical certificate in support of an application to have the matter adjourned prior to the commencement of the hearing. The Court, however, did not receive any medical certificate in support of the applicant's claim and, perhaps not surprisingly, Sundberg J proceeded with the hearing and dismissed the application on the basis of the applicant's non attendance. The Court did not proceed to hear and determine the substantive application or provide reasons for its decision.
After the decision was made by the Federal Court on 16 June 2004 the applicant then made application filed in this Court on 7 July 2004, which I shall refer to as the second application. As I indicated earlier, the applicant now relies upon an amended application. In that amended application he claims as follows:-
“(1)The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
(2)The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
PARTICULARS
It is an irrelevant consideration that the Lok Dal Party did not have a wide national following. My fear of persecution was primarily in the state of Haryana. The fact that threats have been made to me, but had not been acted upon is an irrelevant consideration.
The Tribune newspaper which was relied upon by me which the tribunal considered was a fake has another namesake and this should have been taken into consideration when coming to its conclusion.
The issue of relocation was not dealt with as outlined in the full court case of Randhawa. The tribunal should have considered whether I would be able to relocate to one of the areas within my own state or to another state”.
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, in support of the particulars subjoined to the grounds relied upon by the applicant, he has indicated to the Court with the aid of an interpreter the RRT had drawn a conclusion concerning the threats made to him but not acted upon, and to that extent had taken into account an irrelevant consideration. He further asserted from the bar table that had he known that the RRT was going to conclude that a newspaper article relied upon at the hearing was a fake, then he would have explained that the edition of the newspaper relied upon by him was different to the edition of the newspaper obtained and relied upon by the RRT. He further argued that the RRT had, in considering the issue of relocation, failed to have regard to the difficulties he experienced even when he relocated in an area other than his own region, and further, that his association with the political party which was raised in his application was an association which did not protect him from interference even if he moved into another area where his own party was in power.
It is perhaps relevant in understanding the grounds relied upon to set out in some detail the claims of the applicant. He claimed to be from Karnal in Haryana State, India. He claimed to be a member of the Indian National Congress Party (INC) and had been appointed a senior member by the president of the district of the INC. Before this Court the applicant drew attention to correspondence verifying his position in the party. He feared that due to his political activities in Haryana State, members of the Indian National Lok Dal Party (INLD) would harm him. The INLD had formed a government in Haryana State after the February 2000 state election and he claimed that the INLD had sought revenge on him because he had been responsible for forcing a second election for two seats in Haryana State after identifying irregularities during the state election. The INLD had subsequently lost one of those two seats. The applicant further claimed that the INLD also sought revenge because he had organised a sit‑in process on 23 February 2001 against the alleged kidnapping of four or five people. He claimed he could not obtain protection from the authorities in India because he fears persecution from the INLD Party.
In relation to the critical issues raised in the claim and now sought to be agitated in the application before this Court, it is relevant to note that under the heading “Claims and Evidence” the claims raised by the applicant had been fully set out by the RRT. After setting out in some detail those claims, it is noteworthy that at page 127 of the Court book the RRT states the following:-
“The applicant was asked why he could not move somewhere else in India to get away from his political opponents. He stated they had contacts all over India and they could locate him anywhere. The applicant believed that if he went back to India they would kill him. He does not want to leave the Party. He wants to get involved and remain working for them. He promised his father that he would remain involved with the Party. It was put to the applicant that by leaving India he had effectively left the Party. He stated that he was still a member of the Party. The applicant stated he was in contact with people from his Party and they had advised him that the Party was having no problems in his State. He was asked why he thought they still wanted to kill him, given that his Party seemed to be having no problems. He stated that he had made a personal enemy and they would not forget him.
It was put to him that in his statement accompanying his protection visa application he had said that when the people came to his home to attack him they had ransacked his house and broke the windows, and today he had said they had not damaged anything. He explained that he had difficulty remembering things today.
The applicant was asked about the photocopy of The Tribune newspaper of Monday, 2 April, 2001 that he had provided to the Delegate. He was asked where he had obtained this photocopy and he said that the newspaper came to his home. The applicant was advised that the Tribunal had obtained a copy of the front page of the same newspaper from the National Library of India. The copy that the Tribunal had obtained did not contain the article relating to him. In its place there was an article relating to the relics of Bamiyan Buddha on sale. It was put to the applicant that this suggested to the Tribunal that the copy he had provided to the Immigration Department was a fake. He was asked for his comments and he said he was surprised.
Further in the Tribunal's reasons the following appears in relation to the newspaper article at page 128 of the Court book:-
“On 22 January 2003 the Tribunal received a copy of page 8 of The Tribune from Tuesday 13 February 2001 from the National Library of India. On 4 February 2003 the Tribunal forwarded it to the applicant advising him that it was very different from the page he provided to the Department that purported to be a copy of the same page. It was also pointed out to the applicant that the copy provided by him contained several articles that had a date of 1 April. He was advised that the Tribunal may reach the conclusion the copy provided by him was a fake. He was invited to comment on this information. As at the date of decision no response had been received by the applicant to this letter.
Before this Court when this issue concerning the newspaper article was raised, the applicant conceded that the issue had been brought to his attention, though he did not volunteer an explanation that the newspapers may have been different editions in different regions or states. In its findings and reasons the RRT states the following at page 129 of the Court book:-
“The Tribunal accepts that the applicant was involved with the Indian National Congress Party. It accepts that if he was instrumental in orchestrating a second election because of allegations of fraud in two seats against the Indian National Lok Dal Party, that members of the Indian National Lok Dal Party may wish to take revenge against him. The Tribunal would however have expected the applicant to have been able to provide some newspaper cuttings of information about the subsequent election that was held as a result of fraud or some report in the sources the Tribunal has consulted. However, the Tribunal does not accept that members of this Party are attempting to kill the applicant or force him to leave the Party. The Tribunal accepts that the applicant may have received telephone threats, but these threats have not been acted upon. The applicant remained in Haryana for a lengthy period of time and was not harmed by members of the Indian National Lok Dal. Further, the applicant obtained the protection of the police in India. The Tribunal finds that the applicant has exaggerated the extent of the threats from the INLD. The Tribunal therefore finds that although he may have been subject to threats by the Indian National Lok Dal Party there is no real chance that he will be persecuted by members of that Party and his fear of persecution is not well founded.
The applicant provided copies of two newspaper articles to the Department. He was asked to provide the originals to the Department but did not do so. The Tribunal obtained copies of the relevant pages of the relevant newspapers from the National Library of India. One of these was discussed with the applicant at the hearing. It was pointed out to the applicant that the article about the attack on him at home in April 2001 did not appear in the copy of the newspaper obtained by the Tribunal. The Tribunal finds that the copy of the newspaper provided by the applicant was a fake. This suggests to the Tribunal that if the applicant was attacked at home it was not connected with politics (which was the point of the fake article). Further based on the comparison with the newspapers obtained from the National Library of India the Tribunal finds that the copy of the article relating to the organisation of the Dharna in February 2001 was also a fake. It was this incident that the applicant claimed led him to being attacked at home. The Tribunal finds the applicant has submitted fraudulent documents with his application”.
The RRT then goes on to consider the attacks claimed by the applicant in some detail. It then concludes as follows:-
“Further, even if the applicant was at risk from members of the Indian National Lok Dal Party, the Tribunal notes that it is only in his home state of Haryana that the Indian National Lok Dal Party is strong and in power. The Tribunal does not accept the applicant's assertion that the Party operates in other States under different names”.
Ultimately, the RRT concludes that the applicant does not face a real chance of persecution for reasons of his political opinions, activities in India and his fear of persecution is not well founded. The respondent has submitted that the Tribunal's reasons are conclusions drawn as a result of its fact‑finding process. Those findings of fact are not, it is submitted, reviewable. Reference was made to the decision of the Full Federal Court in NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 where the court states at paragraph 9 the following:-
“9 The 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]”.
It was submitted by the respondent that the decision of the RRT was the result of a proper assessment of all the applicant's claims, with findings made accordingly. No error has been identified in the applicant's amended application. Specific reference was made to the amended application and it was argued that none of the particulars subjoined to the ground referred to earlier in this judgment provides any basis upon which there could be claimed to be jurisdictional error consistent with the authorities to which I have referred.
Specifically in relation to the issue of relocation, it was submitted by the respondent that there was no requirement for the RRT to specifically refer to the Full Federal Court decision of Randhawa v MILGEA (1994) 52 FCR 437. Further, it was submitted that if there was any error arising out of the application of the relocation principles, then the applicant has not identified how that would give rise to an error of a kind which would attract judicial review. The applicant has failed to identify, it was submitted, any misapplication of the relocation principle which could have any material effect upon the RRT decision or which otherwise affected the exercise of the RRT's power.
It should be noted that in addition to seeking dismissal of the application as amended with costs, the respondent has also sought an order that the applicant be prevented from making any further applications without the leave of the Court and has done so pursuant to the appropriate rules of this Court.
Reasoning
In my view, the grounds relied upon by the applicant cannot be sustained and do not provide a basis upon which the Court could conclude there has been jurisdictional error. The claims made by the applicant were fully agitated and considered by the RRT. It was a process which is properly described by the authority to which reference has been made as a process involving findings of credibility uniquely within the jurisdiction of the RRT. Whilst the applicant before this Court may seek to explain by way of example the difficulties with the newspaper reports, I am satisfied on the material before me, including those parts of the RRT decision referred to earlier in this judgment, that the applicant was given every opportunity to make comment on the newspaper articles and the RRT had clearly raised to the extent that it was obliged to do so the prospect that it may make a finding that the newspaper articles sought to be relied upon by the applicant were fakes.
The RRT otherwise, in consideration of the material, properly had regard to the threats claimed to have been made against the applicant. It considered the actual attacks alleged by the applicant and again made findings of fact during the course of its reasoning which were reasonably open to it. I cannot see any error in the RRT's reasoning process.
In relation to the issue of relocation, the RRT again considered the material carefully and reached a conclusion on the facts. I do not see any error or any misapplication of the principles in relation to relocation. Indeed, the RRT, whilst noting a claim by the applicant that he would be at risk in other states, specifically rejected that material and it was open for it to do so, on the evidence before it as presented by the applicant. It follows for the reasons given that there is no jurisdictional error in this matter.
Accordingly, on that basis alone in the absence of jurisdictional error the application as amended on 26 April 2005 should be dismissed with costs.
The respondent had further sought to argue in this application that the Court should further find that this is an abuse of process having regard to the history of proceedings. Quite properly, it is not sought to be argued that res judicata applies given that the application was dismissed for non‑appearance in the Federal Court as indicated earlier. Having dealt with the substantive merits of the application, in this instance it is probably unnecessary for me to consider whether I should further conclude that this is an abuse of process. Of course it would be preferable in these circumstances if the applicant sought to set aside the order dismissing his claim in the Federal Court for non‑appearance. He did not do so but simply made another application in this Court. On the face of it, that may of itself in certain circumstances amount to an abuse of process. However, in the circumstances of this case, having considered the substantive merits, it is not appropriate, in my view, to draw a final conclusion in relation to that issue, save and except to note that it is clearly undesirable for a fresh application to be issued in this Court when another application issued in the Federal Court has been dismissed for want of appearance. Nevertheless, as a matter of law I do not see any basis upon which the applicant can be precluded from bringing a fresh application to this Court in those circumstances.
I am further not inclined in this case, given that the earlier application was not the subject of adjudication but dismissed for want of appearance, to find that this applicant is a person who has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court in a manner which would attract the operation of rule 13.11 of the Federal Magistrates Court Rules 2001 (the Rules) and lead this Court to make an order that the applicant should not institute a proceeding without the leave of the Court. That may not be the case had the matter been adjudicated in the Federal Court. Accordingly, I am not prepared to make an order pursuant to rule 13.11 of the Rules, nor in the circumstances do I regard it as appropriate that I should make a finding that this is an abuse of process and summarily dismiss the application pursuant to rule 13.10 of the Rules.
Instead, as I have indicated, it is my view that the substantive claim is one which should not attract judicial review as I am satisfied there has been no jurisdictional error or any error of a kind which would justify the Court in allowing this application. It follows therefore that the application as amended should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 25 May 2005
0
15
0