MZWQX v Minister for Immigration
[2005] FMCA 828
•6 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQX v MINISTER FOR IMMIGRATION | [2005] FMCA 828 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.418, 430 |
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | MZWQX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1162 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Wee |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application for judicial review be dismissed.
That the applicant pay the respondent's costs, fixed in the sum of $3700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1162 of 2004
| MZWQX |
Applicant
And
| MINISTER FOR MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application by the applicant seeking judicial review of a decision of the Refugee Review Tribunal made on 15 July 2004. The Refugee Review Tribunal was reviewing a decision of a delegate of the Minister made on 10 July 2003, denying the applicant a protection visa. This decision of the delegate was sent to the applicant on 5 August 2003, following which the applicant applied for a review by the Refugee Review Tribunal.
The applicant says that he is a citizen of Nigeria and had arrived in Australia on 18 April 2003. He lodged his application for a protection visa on 1 May 2003. The Refugee Review Tribunal refused the application of the applicant after considering his claims.
The substance of the applicant’s claims are that whilst undertaking employment and work for the People's Democratic Party he was asked to assist in some campaigning for the People's Democratic Party, which he chose not to participate in. During that campaign event colleagues were killed and he was concerned that others suspected him of providing information to adverse groups. After the events, his location in his employer's workplace was shifted and he became fearful that his life would be at risk.
The Refugee Review Tribunal recounted in some detail the crucial information that gave rise to the applicant's fears at page 8 of their decision, stating:
The applicant then claimed that he asked a friend to find out why his office had been moved. The friend had eventually advised him that "gossip" he had heard was that the applicant might be suspected by other Yoruba employees at the "palace" in which he worked of "warning" opposition political groups in Onitsha city that the PDP were intending to return and may act violently towards members of opposing political parties. His friend had then advised the applicant to flee. As indicated in my "Claims and Evidence" above, I put to the applicant this did not appear plausible. He claimed that this is the way "they think" and this is what happened.
I am not satisfied the applicant's fear is objectively well-founded. I do not accept it plausible that some Yoruba employees at the palace in which the applicant worked would have suspected him of warning persons in Onitsha city that the PDP would return as claimed. This is because given the country information cited herein, such violence between opposing political parties was apparently common in and leading up to an election [the applicant agreed the elections were in April/May 2003 - and the applicant left Nigeria on 16 April 2003, having fled his employment in the palace only six weeks previously]. I am satisfied the relevant Yoruba employees would be well aware the people of Onitsha city knew or at least strongly suspected the PDP would return there and that violence may erupt. Accordingly, I do not accept that the Yoruba employees would have suspected the applicant of being disloyal as he claimed.
That said, even if I were to accept some Yoruba employees at the palace in which the applicant was employed may have discussed whether the applicant warned people in Onitsha city as claimed, I am satisfied his Yoruba employer did not doubt the applicant's loyalty, as he agreed to the applicant returning to Imo State City's university exams [during the period the relevant deaths occurred] and allowed him to return to Osun State to take up his employment in the palace after he sat his exams and did not attempt to hurt the applicant on his return to the palace. The only thing the applicant claimed happened at the time was that his office was "relocated to a different side of the compound". If the applicant had advised his employer he did not wish to involve himself in violent campaigning on behalf of the PDP as claimed, I would expect his employer may have been disappointed with him but do not accept his employer would have suspected him of being disloyal, nor that there was a real chance his employer would seek to harm him for this reason.
Further, even if the applicant's loyalty was discussed by fellow Yoruba employees as claimed, based on the evidence accepted and considered herein I do not accept it plausible they would have concluded there was any serious reason to doubt the applicant's loyalty or that they would have acted of their own volition to harm the applicant or that they would have been directed to the harm the applicant by the applicant's employer or any other person at that time or at any time in the reasonably foreseeable future should he return to Nigeria. Therefore, I do not accept the applicant's fear of harm for this reason is objectively well-founded. Accordingly, I am not satisfied the applicant has a well-founded fear of prosecution for this reason should he return to Nigeria.
The terms of the application filed by the applicant are as follows:
1. Because of well-founded fear of persecution, I'm seek review of the decision to enable stay in Australia to avoid being kill if I return to Nigeria. I will be persecuted by the Igbo ethnicity people for my support of the Yoruba. I will face serious persecutions as the Igbo people regard me as spies for the Yoruba. My life will be in great danger because of my role I play against my tribe, the Igbo people, and I am now facing persecution if I return back to Nigeria. The authorities of Nigeria will not protect me, and I am requesting Australian government to protect my life from torture, human rights abuses and kill, if I return to Nigeria.
Unfortunately the application on its face does not disclose any basis for judicial review of the decision of the Refugee Review Tribunal but effectively seeks a merits review.
The matter was listed for a directions hearing in this court on 19 November 2004, at which time I ordered that:
(a)the respondent provide a court book;
(b)the applicant file and serve an amended application;
(c)file and serve a supplementary court book, if any, and significantly; and
(d)the applicant file and serve contentions of fact and law by 28 February 2005.
The applicant did not file and serve contentions of fact and law by that date, but has since then provided a brief document which is headed "Applicant Contentions of Fact and Law." Those contentions are in the following terms:
The applicant is a citizen of Nigeria who arrived in Australia on 18 April 2003 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). Because of owing to a well-founded fear of being persecution for reasons of political opinion, and the applicant 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, is unable or, owing to such fear, is unwilling to return to it. The applicant is the person to whom Australia has protection obligation under the Refugee Convention as amended by the Refugees Protocol.
The Tribunal did not handle the case of the application properly and the decision was not fair because the tribunal supports the DIMIA and the case was against the applicant but according to the Tribunal member Mr S Norman basis on hi finding with reference to page 6 of the decision, Mr Norman decision was not fair and his decision was not acceptable because of the following reasons:
The RRT did not use the appropriate information from Nigeria to assess the case. And the information Mr Norman was not correct and fair.
Mr Norman acting on behalf of Refugee Review Tribunal failed to comply with section 430 of the migration act 1958 and there was also failure to comply with section 418 of the Act.
Mr Norman denied the applicant procedural fairness and the process was not conducted basis on Geneva Convention.
There was no Nigeria political information available during the hearing and Mr Norman never mentioned or quoted or reference regarding the situation as the time of the applicant protection claimed.
The hearing was conducted before the RRT and the applicant gave oral evidence on 14 July 2004, the RRT affirmed the delegate’s decision. On 15 July 2004, the applicant filed an application in the Federal Magistrates Court of Australia seeking judicial review of the decision. And a choice made to pursue that the applicant want the matter to listed for hearing on 18 August 2005 at 10.15am according the Federal Magistrate Riethmuller request and a requested from the Respondent to the Federal Magistrate Court to dismissed the case has no ground for that and issues then agitated are considered by this court. The applicant will accept the case to be dismissed and the respondent should wait for the date set for the hearing and mention above.
It is not clear to the applicant regarding the RRT’s decision and the Tribunal Member never taken it account relating the material the applicant submitted and the oral evidence provided as the time of the hearing and there is a ground of serious persecution if the applicant return back to Nigeria, the member did not taken a proper account into the matters raised by the applicant, and considered the issues specifically raised by his in support of the application.
The applicant advised that he obtained the assistance of his migration agent, who is pursuing the possibility of a visa for him by way of a spouse visa or other form of interim visa, and that the migration agent drew this document.
The document does not, in my view, substantially comply with the order to file and serve contentions of fact and law. The document does not clearly identify the contentions of the applicant with respect to the facts specific to his case that are relevant to show a ground of judicial review nor the contentions of law which are relevant to those facts to demonstrate a basis upon which his application is arguably to be allowed.
As the applicant was unrepresented before me, I took the opportunity to explore each of the dot points set out in paragraph 2 of his contentions, as drawn, in order to ascertain whether there appeared to be facts or circumstances which may arguably give rise to a claim for judicial review of the decision of the Refugee Review Tribunal. I therefore address each of the four dot points.
The first dot point is said by the applicant to refer to an error made by the tribunal member on page 5 of the decision, where the tribunal member states:
He claimed to have been born in Onitsha city, Anambra State, in Ethiopia. He attended a boarding school in "Abia" State, and university in Imo State.
The applicant says that Onitsha city in Anambra State is in fact in Nigeria and not in Ethiopia. The balance of the decision of the Refugee Review Tribunal makes no reference to Ethiopia. It appears to me that the highest that this point reaches is that the tribunal have erroneously made a slip in describing the country as Ethiopia rather than Nigeria at that point in their reasons with respect to a fact that really does not take the matter one way or the other. Judicial review does not flow simply from any minor slip of the tribunal but must be based upon some error on the tribunal's part that would show jurisdictional error. As much is the effect of the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and this of itself does not appear to me to found an arguable case for judicial review.
The applicant also said that this dot point referred to his contention that the tribunal ought to have found out more about Nigerian political parties and the state of politics in Nigeria. There are two important things that can be said about this contention made from the bar table. The first is that the tribunal did in fact have regard to country information from Amnesty International and Human Rights Watch, as is demonstrated in the decision at page 6, where the tribunal said:
Country information that I considered and put to the applicant at the hearing included:
Political violence… In the months before federal and state elections in April and May [2003], there was an increase in political assassinations and violent clashes in which party supporters died. An increase flow of firearms into Nigeria and the creation of armed vigilante groups enabled politicians to foment political violence at local and state levels. Members of state governments and houses of assembly were reportedly implicated in the harassment and intimidation of rival candidates and their followers. [CX96661, ‘Amnesty International Annual Report 2004 – [Covering events from January – December 2003]’, 26 May 2004, Amnesty International, accessed 24 June 2004
And:
Much of the violence was carried out by supporters of the PDP who hired and armed groups of young men to attack and intimidate their rivals. Some of the larger opposition parties, such as the All Nigeria People’s Party (ANPP), used similar methods and also killed and injured supporters of rival candidates during the elections. [CX92785, ‘Human Rights Overview’, January 2004, Human Rights Watch, accessed 16 April 2004]
The applicant was given an opportunity to appear before the tribunal and give oral evidence. He therefore had the opportunity to provide such country information or other information as he thought fit. It does not seem to me that it was incumbent upon the tribunal, on any version of this case, to go out seeking further country information than it had before it. It is difficult to see that this dot point could amount to an arguable case, even on the additional material given by the applicant from the bar table today.
The second dot point claims that the Refugee Review Tribunal failed to comply with section 430 of the Migration Act 1958 (Cth) (“the Act”) and that there was a failure to comply with section 418 of the Act. Section 418 of the Act is in the following terms:
If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2)The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a)sets out the findings of fact made by the person who made the decision; and
(b)refers to the evidence on which those findings were based; and
(c)gives the reasons for the decision.
(3)The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
The compliance with section 418 is recorded in the tribunal's decision at page 4, where the tribunal states:
The tribunal has before it the department's file, which includes the protection visa application and the delegate's decision record. The tribunal has also had regard to a range of evidence and submissions, as set out below.
The court book, which is the evidence of the tribunal's file in the matter contains (at pages 33 to 42) a letter and a detailed decision, including appropriate reasons from the delegate with respect to the initial decision. The applicant today did not understand what section 418 provided for until it was explained to him. It seems that this is a spurious claim that has been inserted by the migration agent who drew the contentions.
Section 430 of the Act is in these terms:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
It is difficult to conceive that the tribunal has breached section 430 when one has regard to the fact that there is a 10‑page written decision by the tribunal that sets out its decision, the reasons for its decision, its findings on all of the material questions of fact before it, with references to the evidence and material upon which the findings were based. I do not see that this is a foundation for a claim for judicial review in the context of this case. Again it appears to be a spurious claim prepared by the Migration Agent.
The third dot point says that the applicant was denied procedural fairness and makes reference to a Geneva Convention. The applicant had no idea what the reference to the Geneva Convention was about, and reiterated his view that the tribunal ought to have found out more about political parties and the political situation in Nigeria. This does not appear to me to be a basis for alleging a denial of procedural fairness to the extent that the outline refers to the process not being conducted in accordance with a Geneva Convention. It is meaningless.
The fourth dot point sets out the thrust of what the applicant referred to in support of his other dot points with respect to Nigerian political information. As indicated above, it is not incumbent upon the tribunal to make any particular inquiry in a case like this. As is clear from the decision, the tribunal has made some inquiries in order to inform themselves of the circumstances in Nigeria. In the circumstances I do not see that this provides any basis for a claim for judicial review.
The substance of the applicant's application is that he seeks a merits review of the decision of the Refugee Review Tribunal. The jurisdiction of this court to issue constitutional writs for jurisdictional error does not extend to a merits review. It is not for me to make a decision as to whether the applicant ought to have been believed. The findings of the tribunal are findings of fact which were open to the tribunal in its fact-finding process.
In the circumstances I am not satisfied that the applicant is able to identify an arguable case for judicial review in this matter.
Having made that finding I therefore conclude that:
(a)The applicant did not comply with the directions in that he did not file and serve contentions of fact and law by 28 February 2005;
(b)The contentions of fact and law that were filed and served by the applicant are not in substantial compliance with the order, and therefore should not be considered as having remedied the breach;
(c)Even on the material presented from the bar table today, it does not appear that the applicant has an arguable case such as to justify further indulgences of time for the applicant to attempt to properly remedy his breach of the procedural order; that is, to enable him time to draw an appropriate statement of facts and contentions. Similarly, given the lack of substance to the applicant's case, it does not appear to me to be the type of case where it would be appropriate to discharge the order for a statement of facts and contentions, on the basis that the applicant is unrepresented and the nature of his claim has been sufficiently identified to allow the minister to answer it.
In the circumstances therefore, I dismiss the applicant's application.
Costs
In this matter the applicant has been unsuccessful. There are no circumstances which would justify an order other than that the respondent have there costs as the party successful in the litigation.
I therefore order the applicant pay the respondent's costs. I have regard to the amount claimed of $3700 on the relevant court scale and the work that has been done in this matter. I find that the costs claimed are reasonable and fix the costs at $3700.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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