MZWPI v Minister for Immigration
[2005] FMCA 491
•7 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWPI v MINISTER FOR IMMIGRATION | [2005] FMCA 491 |
| MIGRATION – Protection visa – no jurisdictional error. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | MZWPI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1025 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 7 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr A Palmer |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 6 August 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1025 of 2004
| MZWPI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 25 June 2004 whereby it affirmed a decision of the delegate of the respondent to refuse the applicant a protection visa. The background is not significantly in dispute, though it is noted that at the time the application before this court was filed, that is, on 6 August 2004, the applicant was then represented by a firm of solicitors. That firm of solicitors ceased to act for the applicant and did so by notice of withdrawal filed on 17 March 2005. The applicant appears before this court unrepresented, though with the assistance of a qualified interpreter.
The applicant, contrary to orders made by a registrar of this court on 18 November 2004, has not filed or served any further material apart from the application which he has sought to rely upon. The respondent has filed contentions of fact and law on 5 April 2005. Because the applicant is unrepresented, I make due allowance for the fact that he has not made detailed submissions in support of the grounds of review sought to be relied upon. It is clear that in this instance the applicant has sought to argue in the application that there has been what might be described as jurisdictional error on the part of the RRT.
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).
By way of background, it is noted that the applicant is a citizen of Turkey and a devout Muslim. He arrived in Australia on 15 August 2002 on a business visa then valid for three months from the date of arrival. On 14 November 2002 he applied for a long stay business visa and that application was refused by a delegate of the respondent on 23 April 2003. On 29 May 2003 the applicant lodged an application for a protection visa. A delegate of the respondent refused that application on 23 September 2003 and shortly after, on 16 October 2003, the applicant applied to the RRT. A hearing was originally scheduled for 11 June 2004, though contact was made with the RRT by the solicitors then acting for the applicant on 9 June 2004 seeking postponement of the hearing in order to allow the applicant time to prepare the case. A postponement was granted to 18 June 2004. Detailed written submissions were forwarded by the solicitors for the applicant on 17 June 2004.
I note in passing that at the hearing before this court the applicant has claimed that when he appeared at the hearing before the RRT, although assisted by a solicitor then acting for and on his behalf, he was under the impression that he was simply only there to answer questions rather than have the general right to speak and put his case. In that sense
I interpret that as being a lack of opportunity to present material in support of his application.
He has further claimed that he had the impression that his application was an application made on his own behalf and on behalf of his wife and two children who have remained in Turkey. As indicated by the respondent, and I accept in the circumstances, the application clearly refers to the applicant's family remaining in Turkey and it is not surprising that in those circumstances they were not part of the application, albeit the applicant now seeks to assert that there was material which he would have provided in support of their claim for a protection visa based on their circumstances in Turkey. I do not accept that as being an appropriate ground upon which this court should interfere with the RRT decision.
In considering whether or not the applicant had an appropriate opportunity to put his case, it is clear from the court book that apart from the material presented to the RRT by the applicant's then representative, the application itself as it appears in the court book contains significant detailed material upon which the applicant relied in support of his application. It seems clear to me that that material combined with the detailed written submissions and other material before the RRT which it had considered in its decision indicates that material was provided in detailed form to the RRT in support of the application and it is not evident to me that that material did not include matters of significance and relevance to the applicant's claim. Specifically I note that although the application itself does not in precise terms refer to physical harm of the applicant in circumstances which I shall describe briefly further in this judgment, that matter was the subject of material placed before the RRT at the hearing.
The summary of the applicant's claims appears to be adequately set out in the respondent's contentions of fact and law and includes the following:
·The applicant claimed that during his time at university, between 1987 and 1992, he took up Koranic study and claimed that he came to be thought of as an authority on the Koran and would visit people in his social circle to lead discussion about the Koran.
·The applicant said he was not a member of any particular Islamist organisation but said he was perceived as a religious radical who polarised opinion.
·The applicant also claimed that he was imputed as the leader of protests in the university about women wearing the veil even though he was not associated with that group.
·The applicant claimed he was expelled from university, verbally abused and physically abused to the point of hospitalisation.
·He claimed that after finishing university he would not be employed by the civil service and consequently started his own company in 1993.
·He employed a manager who became a part owner of the business and who the applicant claimed was a spy for the government.
·The manager had asked him many questions about his religious connections.
·The applicant claimed he did his military service in May 1996 to October 1997 and was discriminated against because of his beliefs.
·He claimed that he was sent to a training school in the west instead of the east and posted at the bottom of a group despite his university qualification with language skills.
·The applicant also claimed that he was placed in a commando group even though he did not meet the physical requirements and was classified as a computer repairer even though he did not have skills in that area.
·After military service the applicant returned to his home town and claimed that his reputation had grown as a religious activist.
·He closed his business, took an office job at a financial institution.
·However, he claimed he was suspicious that people were trying to trap him and that members of his group had been discriminated against, wounded or killed in the east by government agents.
In the RRT decision under the heading ‘The Hearing’ the RRT sets out a number of issues that it raised specifically with the applicant. In relation to the issue of abuse by other groups, including physical abuse, it is relevant to note the following passage which appears:-
“The tribunal asked the applicant why, given that he was not a member of any Islamist organisation, he believed he would be perceived as a religious radical. The applicant said his background was one of continuously studying or teaching Islam small groups in Konya. Later on ‘our’ ideas would grow in importance. ‘They’ would see ‘us’ as polarising opinion. The Tribunal asked the applicant why he believed the authorities had this perception of him. The applicant said all the incidents ‘we’ have been through proved that this was the case. The Tribunal asked, what incidents? The applicant said it was all in his claims, every incident and reaction ‘we’ have received. For example, being expelled from university, being verbally abused by other groups, and physically abused to the point of hospitalisation, his placement during military service, people in his group not being able to be employed in civil service, being sacked from private employment, ‘our’ words coming back to ‘us’ distorted, to portray us as members of Hezbollah, ‘we’ have been closely watched and followed, they came into the workplace, and ‘our’ workers turned out to be spies."
The RRT thereafter continues to pursue issues that are clearly relevant and arise from both the application, the submissions and indeed material provided at the hearing. There is little doubt in my view that the RRT has, as submitted by the respondent, correctly identified relevant law and legal principles. It appropriately then, in my view, appeared to analyse the claims. Whilst accepting that the applicant had participated in private Koran study groups since university days, it did not accept there was a real chance of the applicant being persecuted in connection with that activity. It made findings of fact and drew the following conclusions, which appear to be accurately summarised in the submissions of the respondent as follows:-
“The tribunal found the evidence presented on the point of the adverse interest in the applicant's religious activities to be unpersuasive and consisting of a series of phenomena that had no convention significance on their face, of which the applicant sought to characterise as somehow indicative of a sinister intent on behalf of the authorities or other agencies.
The tribunal did not accept that the applicant himself or his study groups had open conflicts with other groups and did not accept that he was physically injured due to the head scarf controversy. The tribunal did not accept that there was anything particularly remarkable about his military service. The tribunal was not satisfied on the evidence that the applicant's friends were killed or shot in the east and were harmed for convention reasons. It noted that during the time the applicant had been involved in Koranic study groups he had never been raided and had never been subject to any other direct approach by the authorities.”
It is also clear from the RRT’s findings that it has noted that the applicant's family had indeed remained in Turkey. Under the heading ‘Claims and Evidence’ the RRT states the following, at page 67 of the court book:-
“In his protection visa application, the applicant said he was born in K, Turkey, in 1966 and his religion is Islam. He married in K in 1992. His occupation before coming to Australia was sales and marketing manager. He is a Turkish citizen and travelled to Australia on a Turkish passport issued in K in June 2001. He had never travelled before (but then said he had lived in Bulgaria from August 1994 to January 1996. The applicant went to school from 1971 to 1985, and then the Faculty of Religions at S University in K from September 1987 to June 1989. He then went to the Faculty of Foreign Trade from September 1989 to June 1991 and to another university and then a faculty of accountants from September 1991 to June 1994. From 1993 to 1996 he had his own firm. He did military service from May 1996 to October 1997. After this he worked for a series of firms, primarily in sales and marketing. His wife and two daughters are in Turkey. He left Turkey legally and had no difficulty obtaining a passport.”
In the application which is before the court the applicant has sought to rely upon a number of grounds. Those grounds include the following:-
(i)The Tribunal misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s65 being the Convention ground of membership of a particular religious group consisting of students undergoing ‘Koranic studies’ at University level.
(ii)The Tribunal failed to consider the Applicant's case as presented of the existence of a particular group being men and women who had studied the Koran and were followers of Islam who were at risk of persecution due to their religious beliefs in Turkey in that it made no findings on this anterior issue before proceeding to make adverse findings about his claims.
(iii)In view of the nature of its findings about the various incidents of persecution and unfavourable treatment claimed by the Applicant to have occurred and whether they have a direct Convention nexus, the Tribunal was bound to consider the matter on the basis that it may have been wrong in its findings. In not doing so the Tribunal failed to deal with a central claim advanced by the Applicant.
(iv)It took into account an irrelevant consideration in making its findings namely country information that indicates a range of degrees of religious devotion occurring in Turkey.
The respondent has submitted that none of the grounds relied upon should succeed. In relation to the first and second grounds, it is submitted that the RRT did in fact consider properly the matters put by the applicant to the RRT and that it did not misunderstand or misconstrue the criterion. It is submitted that the submissions made by the solicitors then representing the applicant and the passages relied upon as a basis upon which the applicant could claim to have a well‑grounded fear of persecution were put in terms of religion and imputed political opinion. That claim was considered, evidence adduced and rejected. It is submitted by the respondent, and I accept, that in relation to those matters the findings of fact it made are findings reasonably open to the RRT and findings which were not affected by jurisdictional error or indeed error of any kind. They were findings of fact reasonably open to the RRT on the material then before it.
In relation to the third ground of appeal where it is alleged that in view of the nature of its findings about the various incidents of persecution and unfavourable treatment claimed by the applicant to have occurred and whether they have a direct convention nexus, the RRT was bound to consider the matter on the basis that it may have been wrong in its findings. In not so doing, the RRT failed to deal with the central claim advanced by the applicant. It is submitted that effectively this ground seeks to assert that the RRT should have applied a what if test on the basis that it may have been wrong about its findings. It was submitted by the respondent that the RRT would only have been obliged to apply that test if its findings rejecting the various incidents of persecution and unfavourable treatment claimed by the applicant to have occurred were finely balanced or, in other words, it had found that it was only slightly more probable that these incidents did not occur when they did occur.
Reference is made by the respondent to the authority of Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576. It is argued by the respondent that the RRT in the present case simply found the evidence presented by the applicant to be unpersuasive and from its reasons it had no real doubt as to the correctness of its findings, and to that extent the case is similar to the matter before the High Court in the decision of Guo to which I have just referred. In my view, the submissions on behalf of the respondent are clearly correct. This was not a finely balanced exercise by the RRT but in its consideration of the claims and evidence as presented and its findings of fact, it made very clear and precise findings in relation to those claims as presented and it could not on any reading of the reasons be claimed that this was indeed a finely balanced exercise.
As to the fourth ground of appeal, it is difficult in the absence of any particulars for a court to determine that this ground could be sustained. In the circumstances, it is submitted by the respondent that in this case the claim was that the applicant had a well‑founded fear of persecution because of his religious beliefs and reference is made to the written submissions. Information therefore concerning the degree to which religious beliefs or practices are tolerated in a country, it is submitted is relevant in a case where it is claimed that an applicant is suffering a well‑founded fear of persecution for reasons of religion. I note in the present case that apart from relying upon the relevant country information, which I am satisfied it was reasonable for the RRT to do in this case, it also put to the applicant aspects of that country information. The country information, having regard to the nature of this claim, is both relevant and indeed it is appropriate that it should be put as it was put to the applicant in this instance. For that reason it would follow that the fourth ground would fail.
I cannot on a proper reading of the RRT decision and having considered the matters raised before me by the applicant in this court find any error of a kind which would attract judicial review of the RRT decision made on 25 June 2004. Specifically for the reasons given,
I cannot find that there has been any jurisdictional error or indeed any error of a kind which would attract judicial review. Accordingly, it follows that the application filed on 6 August should be dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 April 2005
0
14
0