MZWSM v Minister for Immigration - [2005] FMCA 1260

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWSM v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1260

MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdictional error.

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

MZWSM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1406 of 2004

Judgment of:

McInnis FM

Hearing date:

15 August 2005

Delivered at:

Melbourne

Delivered on:

15 August 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr R.C. Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Applicant be granted leave to amend the name of the Second Respondent by deleting "the Refugee Review Tribunal member" and in lieu thereof inserting "Refugee Review Tribunal".
The application as amended be dismissed.
The applicant shall pay the respondent's costs, fixed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1406 of 2004

MZWSM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 15 September 2004. The tribunal affirmed a decision not to grant to the applicant a protection visa.
The application filed on 29 October 2004 had referred to the Minister for Immigration & Multicultural & Indigenous Affairs as first respondent and the Refugee Review Tribunal member as second respondent. At the commencement of the proceedings leave was granted to the applicant to vary the name of the second respondent by deleting the words "the" and "member" so that the second respondent description reads "Refugee Review Tribunal".
The applicant has relied on an amended application filed 5 April 2005, together with contentions of fact and law filed the same day. The respondent has relied upon contentions of fact and law filed 6 May 2005, which to a large extent sets out background information and otherwise recites key findings made by the tribunal, as well as providing a summary of the claims made by the applicant.
The applicant is unrepresented and, perhaps not surprisingly, has sought to raise issues which might properly be characterised as issues whereby he expresses concern as to the factual findings made against him by the tribunal.
By way of example, he has referred to a finding by the tribunal concerning the perceived delay by the applicant of his departure from India in circumstances where he had had a visa issued to him on 24 July 2003 and if he had feared persecution as claimed, the tribunal asked why he did not leave then till 9 September 2003. I use that as an example of concerns expressed by the applicant, as he explained to the court, as he did to the tribunal, that he had to make necessary arrangements for his family to move residence.
It is understandable that issues of fact of that kind are sought to be agitated by an unrepresented applicant. However, other issues arose which I shall deal with presently where on the face of it the application itself does not provide a great deal of detail in relation to the particulars relied upon in support of various general grounds, without specific reference to material in a manner which would be regarded as adequate to support those grounds. I shall deal with the grounds and the submissions presently.
By way of background, it is noted the applicant is an Indian citizen who arrived in Australia on 13 September 2003. He lodged an application for a protection visa on 9 October 2003, and that application was refused by a delegate of the first respondent on 5 November 2003. Thereafter the applicant lodged an application for review with the tribunal, on 2 December 2003. As indicated earlier, a decision dated 15 September 2004 by the tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.
The applicant made a number of claims before the tribunal set out under the heading ‘Claims and Evidence’ in the Tribunal decision, (Court Book pages 83-84). It is relevant to set out those claims as they appear in the RRT decision as follows:-
“CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
Protection visa application
The applicant claims to be an Indian Muslim from Cennai, Tamil Nadu. The applicant claims to have been ‘the victim of religious riots and suffered threats and harassment and had property damaged by Hindus and pro-BJP/RSS supporters’. He claims to fear persecution for reason of his religion (as a Muslim) and for reason of his political opinion (through his support for the Muslim League). He also claims to fear being caught up in communal violence between Hindus and Muslims. He claims that the Indian police will not protect him.
The applicant claims that his father worked with the Muslim community and was involved with the Muslim League. The applicant claims that consequently, he (the applicant) joined the Muslim League and attended rallies and meetings, hung posters and flags. He states that he was involved in local elections by supporting the local Muslim members.
The applicant claims that he BJP is anti-Muslim and that the Hindus who lived near him supported the BJP. He said the BJP in his area was affiliated with the RSS. He claims that he and his father were constantly harassed and that his life was threatened several times by BJP/RSS supporters. He claims that the Muslim League meetings were targeted and their posts and flags were torn down and burnt. He claims that BJP supporters from Ahmadabad and BJP supporters from Tamil Nadu joined forces and searched his house and property, damaging his property in the process. He claims that the family property in Gujarat was looted and burnt to the ground after the 1994 violence in Gujarat. The applicant claims that he and his father were affected by mob violence and lost all their possessions after the violence which occurred in Gujarat in 2002. He states that his father died as a result of those problems. He stated that he was forced to stop his business in Ahmadabad due to the problems with the BJP and RSS and made arrangements to leave India.”
It is clear that those are claims which were the subject of the hearing which occurred on 24 May 2004. The applicant was then accompanied by an adviser and gave evidence with the assistance of an interpreter.

Before this court an interpreter has not been used, though I am satisfied that the applicant, through his submissions, has demonstrated a clear understanding of the issues of concern to him.
Although the respondent's facts and contentions were forwarded to the applicant at his appropriate address, I accepted at the commencement of these proceedings that the applicant, as he asserted, had perhaps not received those contentions. Time was then provided for him to consider the contentions and to then make submissions accordingly.
The findings of the tribunal are significant. It considered the nature of the applicant's father's problems in the region but it is fair to say concluded that it was not prepared to accept that evidence on the basis that it was neither consistent nor convincing. It made other findings adverse to the applicant in relation to the credibility of the evidence, and indeed the applicant's evidence regarding alleged ongoing threats to his father.
Considering the findings, it is clear that on a proper reading of the tribunal's decision that during at least the hearing, the tribunal put to the applicant matters of concern to the tribunal in the context of the claims made by the applicant. There is indeed, on a proper reading of the tribunal's decision, what can only be described as a fairly comprehensive exchange and ultimate consideration of the facts and the claims made by the applicant.
One issue raised by the applicant before this court, though not clearly set out in the amended application, concerns the question of country information and the use made of that information, and a claimed failure on the part of the tribunal to provide, if it had an obligation to do so, that information prior to the hearing. I accept as submitted by the respondent however, in the present case, that there is in fact no obligation to provide that information in these circumstances, and I am satisfied it was not ‘applicant-specific’ information but rather general information and therefore no error emerges as a result of any claimed failure to provide that information.
I should add however that it is clear from the court book that in any event, country information then in the possession of the tribunal appears to be similar if not identical to information before the delegate, was put to the applicant during the course of an exchange (court book page 9).
The applicant has complained that part of that information and conclusions reached did not appear to be a complete picture of what had occurred in the 2001 election in Tamil Nadu. That issue, as with the earlier issue I identified concerning the applicant's departure from India is a matter which could properly be described as an attempt to agitate the findings of facts or otherwise impermissibly seek to review the application on its merit.
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 this application, when one considers the claims put to the tribunal and then further, on a proper reading of the tribunal's reasons, considers the very detailed findings it made, it is difficult in my view to discern any error of a kind which would attract judicial review. Whilst I can understand that the findings are findings which the applicant now seeks to challenge, it is my considered view that the reasoning of the tribunal in this instance appears to be a reasoning and finding of facts reasonably open to the tribunal in the performance of its fact‑finding mission, having regard to the claim as put by the applicant.
A suggestion made by the applicant that the claim was not properly considered is not supported by the material. The claims are detailed and, more importantly, those claims in my view have been given an appropriate and careful consideration by the tribunal.
In the circumstances, applying the relevant principles which I am bound to apply in this application, I am unable to detect any jurisdictional error. I do not regard any failure, if there be one, to provide country information, as providing any or any proper basis in this case for judicial review.
Accordingly, in my view it follows that the application should be dismissed with costs.
I shall direct that the reasons I have just given be transcribed, and upon review shall constitute my reasons for judgment in this matter.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 15 August 2005