MZWSN v Minister for Immigration

[2005] FMCA 1219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWSN & ANOR v MINISTER FOR IMMIGRATION
& ANOR [2005] FMCA 1219

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.91R(2), 474

Minister for Immigration & Multicultural & Indigenous Affairs v SZBSO [2005] FCA 187

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

Applicants: MZWSN & MZWSO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG1421 of 2005

Judgment of: McInnis FM

Hearing date: 16 August 2005

Delivered at: Melbourne

Delivered on: 16 August 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr G Gilbert

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Applicants be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. The Second Respondent shall be granted leave to file and serve a Notice of Appearance.

3. The Application filed 3 November 2004 be dismissed.

4. The Applicants shall pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1421 of 2004

MZWSN & MZWSO

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDISEGNOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application judicial review is sought of a decision dated

   
   

   14 September 2004 of the Refugee Review Tribunal (the RRT). The application filed 3 November 2004 is made pursuant to s.39B of the Judiciary Act 1903. The decision of the Tribunal dated 14 September 2004 had affirmed a decision of a delegate of the respondent to refuse to grant the applicants a protection visa. The applicants are husband and wife who are nationals of India. Now the husband is a Shite Muslim born in Mumbai. The wife is a Hindu. They had arrived in Australia on 23 March 2003 - I should say on or about 23 March 2003 travelling on visitors visas.

2. An application for a protection visa was lodged on 17 April 2003 and that application was refused by a delegate of the Minister on 26 August 2003.  It is noted in the background that on 4 August 2004 the applicants sought to have a new born child, that is a girl born 7 June 2004, included in the application.  However, that application was refused on the grounds that she did not meet the relevant criteria for inclusion.  The correspondence revealing the outcome of that request is set out on pages 91 to 93 of the Court Book.  The Tribunal in its decision has set out in what I regard to be significant detail the claims made in this application. 

3. So much is clear under the heading "Claims and Evidence" (pages 102 to 116 Court Book).  It is fair to say that considering those claims and evidence that the summary provided by the respondent in the contentions of fact and law is accurate though in a sense deficient as it fails to obviously set out the great detail that was provided by the Tribunal itself.  However, it is sufficient in the present circumstances to note, that the applicant at first claimed he would be persecuted if he returned to India because of an imputed political opinion.  It is also significant to note that it is the first applicant, that is the applicant husband, who made the claim for protection. 

4. His claim was based upon membership of the Samajwadi Party and he further claimed to face problems from the Shiv Sena and the BJP.  He further claimed a fear of persecution because he said he was unable to practice his Shite religion.  A third claim was one where he feared persecution on the basis of his intercaste marriage, that is to his Hindu wife.  I am not sure whether it is correct to describe that as ‘intercaste’ but nevertheless the issue was clearly one raised and considered by the Tribunal.  It also becomes an issue that is relevant to an authority referred to by the respondent in the course of submissions and further referred to this day namely Minister for Immigration & Multicultural & Indigenous Affairs v SZBSO [2005] FCA 187.

5. In its reasoning the Tribunal made a number of key findings (Court Book pages 127 to 134).  For convenience I accept that those findings and reasons have been accurately summarised in the respondents contentions of fact and law set out in paragraphs 4(a) to 4(n) inclusive.  I am satisfied that the summary accurately reflects the detailed findings and reasoning of the Tribunal.  The applicant who is unrepresented understandably has made limited submissions to this Court, both before the Court today, and in his contentions of fact and law filed 17 March 2005. 

6. Essentially he has argued that the Tribunal in considering the application misunderstood the meaning of persecution and failed to consider what he claims to be the well founded fear of persecution for a Convention reason.  He further argues that other material was taken into account by the Tribunal without him being given the opportunity to comment on that material.  As is often the case in matters of this kind the applicant has not provided detailed particulars of the grounds relied upon in the application for judicial review.  Nevertheless in summary

   
   

   I am prepared to accept that what is asserted by the applicant in this instance is that the Tribunal has in fact committed an error of a kind which could be described as jurisdictional error. 

7. 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.”

8. 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).

9. It is submitted on behalf of the respondent that essentially the claims made by the applicant although referring to a number of transgressions by the Tribunal effectively seek to agitate the claim again before this Court.  At the outset I indicated to the applicant that it is not the role of this Court to rehear the facts or make another determination on the facts even if it was so minded.  In this case having regard to the issues raised by the applicant, both in the written contentions and in submissions before this Court, I am satisfied that the applicant is aggrieved by the findings of fact. 

10. However, I am further satisfied that in its very detailed account of the claims and evidence and further detailed findings and reasons in this instance the Tribunal has provided what could only be described as an exhaustive and thorough assessment of the claims and evidence and has reached a decision setting out its findings in detail and in a manner which is reasonably open to it free of jurisdictional error.  I do not accept that there is any evidence to lead this Court to conclude that the Tribunal in making an assessment of the relevant law in relation to a meaning of persecution has misdirected itself or applied the wrong law. 

11. I further do not accept that there has been any misunderstanding by the Tribunal of s.91R(2) of the Migration Act 1958 (the Act), in particular, the meaning of ‘serious harm’.  It is clear and I accept as submitted by the respondent that the findings made by the Tribunal in this instance were findings of matter of fact for the Tribunal in applying the relevant legislation in considering whether conduct alleged amounted to serious harm.  As I indicated earlier reliance was placed upon the decision of the Federal Court in the matter of Minister for Immigration & Multicultural & Indigenous Affairs v SZBSO where the Court states:-

    “9         It is submitted for the Minister that whether conduct amounts to ‘persecution’ and whether the applicant for a visa has a well founded fear of persecution on return are questions of fact and degree for the Tribunal. It is submitted that the Tribunal had found that the harm to the respondent that the Tribunal found to have occurred was not serious enough to amount to persecution and, having considered the past as a guide to what might occur in the future, the Tribunal was not satisfied that a case of a well founded fear of persecution on return was made out. It is submitted that such findings were the province of the Tribunal. Reference was made to Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268 and Arumugam v Minister for Immigration and Multicultural Affairs [1999] FCA 251 at [37]. It is submitted that the Tribunal simply took a different view to that of the respondent on the facts as to whether or not what had transpired amounted to persecution in the relevant sense and whether the respondent had a well founded fear of persecution if he returned to India and that no jurisdictional error was involved.

    10 In my respectful opinion that submission is correct. It cannot be concluded that the Tribunal actually or constructively failed to consider the questions for decision by it pursuant to the statute. The learned Federal Magistrate did not criticise the statement of law by which the Tribunal directed itself and did not identify any language of the Tribunal which pointed to any misunderstanding of its statutory task. I am satisfied that this is not one of those rare cases where the facts are so clear and the finding so aberrant that it can be concluded that the Tribunal must have misdirected itself in some unexpressed manner. It is also worth noting that the reasons of the learned Federal Magistrate do not grapple with the effect of s 91R in a case such as this, nor with the question of State involvement discussed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 78 ALJR 678, (2004) 205 ALR 487.”

12. There are certain similarities between the facts in that case and the facts in this case though of importance is the application of the principle that in circumstances where a Tribunal has taken a different view to that of the applicant does not of itself in considering what might amount to persecution constitute an error of law or indeed a jurisdictional error.  The comments of His Honour Gyles J in that decision are apposite to the present application.  Otherwise in my view the grounds sought to be relied upon by the applicant cannot succeed before this Court for the reasons that I have stated in applying the relevant principles of law which should be applied in relation to jurisdictional error.

13. In my view on a proper reading of the reasons of the Tribunal and the decision as a whole as it has properly considered and done so in fact in a detailed fashion the claims and evidence in this matter and then without any error of law has then proceeded to draw conclusions of fact reasonably open to it. Given that the decision of the Tribunal is a privative clause decision as defined by s.474 of the Act and it is free of jurisdictional error it follows therefore that the application should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  16 August 2005