MZWTQ v Minister for Immigration - [2005] FMCA 1417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWTQ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1417

MIGRATION – Protection Visa – Refugee Review Tribunal – judicial review – whether jurisdictional error – role of re-constituted tribunal.

Migration Act 1958, ss.91R, 424A, 424A(1)

Applicant VEAT v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1545
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965
NAUW v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1086
Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 541

Applicant:

MZWTQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1534 of 2004

Judgment of:

McInnis FM

Hearing date:

16 September 2005

Delivered at:

Melbourne

Delivered on:

5 October 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms S. Moore

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 25 November 2004 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1534 of 2004

MZWTQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 October 2004. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant who claims to be a citizen of India, arrived in Australia on 17 July 2003. On 8 August 2003 he lodged with the Department an application for a protection visa. The application was accompanied by an undated, signed statement of the Applicant and a brief statutory declaration. Further material was subsequently filed with the Department by the Applicant's lawyer.
On 21 January 2004 a delegate of the First Respondent refused the application. The Applicant then, on 26 February 2004, applied to the Tribunal for review of that decision. The Applicant attended a hearing before the Tribunal on 24 June 2004. Following that hearing the Tribunal was reconstituted. On 13 September 2004 the Applicant was advised that the reconstituted Tribunal had listened to the hearing tape. The Applicant was invited to comment on concerns raised by the previous Tribunal member.
In the letter to the Applicant dated 13 September 2004 (Court Book 78) the Tribunal advised the Applicant of the following:-
“…
We wish to advise you that the Member previously deciding your case is no longer available and your application has been constituted by another Member ...”
In the same correspondence the Tribunal refers to having regard to previous submissions on the file and evidence given at the hearing with the previous member on 24 June 2004 and then notes concerns raised by the previous member in that hearing and which the Tribunal will be taking into consideration. It then summarises those concerns as follows:-
·the nature and extent of your involvement in the Congress Party;
·doubt as to whether you had been truthful about the bad things that happened to you as a result of your political activities;
·doubt as to whether there was a serious intent to harm you in the year after you were released from hospital before coming to Australia;
·the lack of credibility in the evidence you gave about your involvement in the bye-election in …..; and
·fabrication of the events which took place in connection with the election in ….. (namely your attendance at a rally in which a fight broke out and a member of the …... was killed and for which you were being sought
The Applicant was then invited to comment on the matters raised in the correspondence and was otherwise advised that the Tribunal would then proceed to make a decision.
A summary of the Applicant's claims before the Tribunal is set out in the Respondent's contentions of fact and law, taken from the Tribunal's reasons, and in my view accurately summarised the claim in the following terms:-
“7. The applicant’s claims and evidence are set out in the Tribunal’s reasons at CB 85-100. The applicant’s claims in his original application and statement were:
·He was a twenty year old Hindu male with 12 years schooling. He had not been employed in India.
·He claimed to have left India due to “constant and continuous persecution due to (his) political opposition.
·He feared persecution by members of opposition parties and by the police because of wrongful implication in criminal matters by his political opponents.
·He would not be protected by the state because his persecutors belonged to the ruling party.
·He had returned to India on 16 April 2003 to participate in a by election.
·His uncle was a very active member of the Congress Party and vice president of the party in the applicant’s district. The applicant joined the youth wing of the party and was elected as a joint secretary at a college election. He was appointed assistant secretary of the youth wing and canvassed door to door. He arranged street meetings for the party.
·He found bogus voting and vote rigging during an election and reported this to the returning officer. This led to a re polling and opposition parties lost seats. The opposition parties began attacking members of the Congress Party.
·He and four colleagues were falsely arrested, detained and tortured. They were released after the intervention of local leaders.
·In February and March 2002 there were attacks against members of the Congress Party. This led to protests and the applicant was attacked and injured at a protest in …. He spent two weeks in hospital. Reports were lodged with the police but no action was taken.
·He toured most parts of the state fighting and demonstrating against the opposition parties. There were threatening telephone calls and attempts to attack him but he escaped.
·His ethnicity was Ror and he also faced persecution because of his ethnicity.
·He was asked to urgently return to India on 16 April 2003 by the party president to organize a by election. His candidate was Ms Dura Ram. On 19 May 2003 a gathering was disrupted by opposition supporters and there was fighting and shots were fired. No action was taken by the police due to “political pressure”.
·The opposition party won due to vote rigging and then attacked the applicant’s house. He took shelter in a remote area. The opposition supporters then lodged a false report with the police that the applicant had injured some people.
·The police visited the applicant’s house and assaulted his father. The police arrested two of the applicant’s colleagues and assaulted them. The applicant went to stay with his uncle.
·Later one of the injured opposition supporters died and the police again came searching for the applicant. Opposition supporters also attacked his house and assaulted his father. The applicant’s uncle arranged for the applicant to travel to Australia. The applicant traveled on his own passport after paying a heavy bribe.
·The applicant’s father has now told him that he has been charged under the Indian Penal Code and faces a minimum sentence of ten years imprisonment. The police regularly come looking for him. The opposition supporters are also still looking for him.

The Tribunal Decision

Under the heading "Findings and Reasons" (Court Book page 104) the Tribunal makes the following significant findings:-
“Given the Tribunal does not accept that the applicant had a high profile with the Congress party, the Tribunal does not accept that the applicant was summoned back to India from Australia to assist in the campaign for the bye‑election in Fatehabad. The Tribunal does not accept that the Congress Party, one of the largest parties in India, would need to call someone from overseas to help in a local bye‑election. Further, the Tribunal finds the applicant's confusion as to the sex of the Congress Party candidate in that bye‑election is further evidence that he had nothing to do with that election at all. The Tribunal finds that if the applicant had worked in the bye‑election in the capacity he claimed he would have been aware of the gender of his party's candidate. It follows the Tribunal does not accept that the applicant attended a rally which was disrupted by members of INLD, VHP and Bajarang Dal and that fighting broke out and two members of Bajarang Dal and INLD were shot and injured. It does not accept that his house was attacked and he escaped and took shelter in a remote area. Nor does the Tribunal accept that the reports were lodged against the applicant and two of his colleagues and that they were detained and the police came looking for him and assaulted his father instead. The tribunal also does not accept that the two people who were injured died and the applicant and his colleagues were being charged with murder and that the police continue looking for the applicant and that members of Bajarang Dal, Shiv Sena and INLD are after him and want to finish him. The Tribunal finds that the applicant was in no way involved in the election in Fatehabad and rejects his claims surrounding this particular incident. The Tribunal gives no weight to the affidavit and letter provided by the applicant's father. It finds that these have been provided to bolster the applicant's claims, which the Tribunal has not accepted.”
It is clear in the Tribunal's findings that it has not accepted the Applicant was joint secretary of the Congress Party and had difficulty accepting other claims made by the Applicant in relation to the level of his involvement in the Congress Party. In general terms, it is clear that having considered each of the claims made by the Applicant, the Tribunal was not satisfied that he was a credible witness.

The Grounds

The Applicant, who is unrepresented, has filed contentions of fact and law on 19 April 2005. The grounds set out in those contentions appear to be now relied upon by the Applicant, and for present purposes I accept that the grounds were accurately summarised in the contentions of the Respondent as follows:-
“(a) At paragraph 6 the applicant claims that the Tribunal erred in not asking whether, if the claims were correct, the applicant faced a real chance of persecution should he return to India.
(b) At paragraph 7 the applicant claims that the Tribunal failed to ask whether he faced a real chance of persecution because of his membership of the Congress Party.
(c) At paragraph 8 the applicant claims that the Tribunal did not properly direct itself to the meanings of real chance, persecution and section 91R of the Migration Act 1958 (Cth) ("the Act"), by not considering whether the injuries and hospitalization received by the applicant constituted persecution.
(d) At paragraph 9 the applicant claims that the Tribunal failed to properly consider his claims by failing to consider material provided by his father.
(e) At paragraph 10 the applicant claims that the Tribunal failed to provide country information relating to the defeat of Mr Dura Ram and should have given him the opportunity to comment in writing.
(f) At paragraph 11 the applicant claims that the Tribunal, having been reconstituted, should have provided him with a further hearing.”
I accept that in effect ground (a) appears to be suggesting the application of the "what if I'm wrong" test. I accept the submissions by the Respondent that that is an inappropriate test and should be rejected. (See Applicant VEAT v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1545 (27 October 2001) per Selway J at [15] and [16].)
Further, I am satisfied that the Tribunal has clearly addressed the question it was required to address, and so much is evident from the following passage which appears from its decision (Court Book page 105):-
“…
As a result, the Tribunal finds that the applicant does not face a real chance of persecution for reason of his political opinion if he returned to India, now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant's fear of persecution for a Convention reason is not well‑founded.”
Hence ground (a) in my view fails.
The Applicant's second claim, set out as ground (b), in my view likewise fails. It is clear that the Tribunal accepted the applicant may have been a member of the Congress Party and it is noted that no claim for persecution has been made as a result of the mere membership. The rejection by the Tribunal of the profile of activities undertaken by the Applicant were matters reasonably open to the Tribunal and it was not otherwise required in my view to then pursue the question of whether or not the Applicant faced a real chance of persecution because of his membership of the Congress Party. It is not a matter for the Tribunal, as submitted by the Respondent, to consider a claim not raised by the Applicant (see Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559. Hence I do not see any jurisdictional error arising out of this ground.
The third claim, referred to as ground (c) above, provides a claim by the Applicant that the Tribunal did not properly direct itself to the meaning of "real chance of persecution" and s.91R of the Migration Act 1958 (Commonwealth) (“the Act”) by not considering whether the injuries and hospitalisation received by the Applicant constitute a persecution. The Tribunal has considered the issue and in my view, although it accepted the Applicant was hospitalised, it is clear that it had rejected the Applicant's explanation for the hospitalisation. Having made that finding of fact reasonably open to it, I do not see any basis upon which it could be suggested that the Tribunal has therefore failed to consider the claim and specifically misdirected itself in relation to the meaning of a "real chance of persecution" and s.91 of the Act. Hence that ground fails.
The fourth claim, referred to as (d) above, sets out a broad complaint that the Tribunal failed to properly consider the Applicant's claims by failing to consider material provided by his father. The extract set out above clearly indicates that in fact the Tribunal did consider the material provided by the Applicant's father. The mere fact that the material is rejected or weight placed on it which is different from what the Applicant asserts should have been placed on that material, does not of itself provide any basis upon which this Court can conclude that in relation to that issue there has been jurisdictional error. Instead I accept, as submitted by the Respondent, that the Tribunal has simply embarked upon its fact‑finding mission and made findings of fact, in my view which are clearly open to it on the material as submitted.
I further accept in relation to this ground, as submitted by the Respondent, that in any event the Tribunal had already rejected the claims by the Applicant and found he was not involved in the elections or the incident in which he claimed to be accused of murder. Hence on that finding free of jurisdictional error, the Tribunal was then entitled to give appropriate weight, if any, to the letter and affidavit from the Applicant's father. There is no jurisdictional error demonstrated in its approach to that issue.
In the contentions of the Applicant, which I note were filed 19 April 2005, the ground referred to as (e) above refers in general terms to the failure of the Tribunal to provide country information relating to the defeat of Mr. Dura Ram and claims the Applicant should have been given the opportunity to comment in writing.
Clearly the contentions were filed prior to the delivery of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 (18 May 2005). Counsel for the Respondents quite properly addressed an argument, not specifically articulated though perhaps open to the Applicant, that the information concerning Dura Ram may have been required to be put in writing, in accordance with s.424A of the Act, following the SAAP decision.
It is noted in the course of the hearing the Tribunal refers to the issue where the Applicant had stated the Congress Party candidate was a "Ms Dura Ram". The following extract from the Tribunal decision is relevant:-
“The Tribunal put to the applicant that in his submissions he stated that the Congress Party candidate was a Ms Dura Ram. The applicant confirmed that this was correct. The Tribunal put to the applicant that Dura Ram was a man and the other candidate, the INLD candidate, was a woman. It referred to an article in which Dura Ram was described as the nephew of somebody. The applicant’s adviser submitted an article to the Tribunal which he stated supported the fact that Dura Ram was a woman. The Tribunal noted that the article stated that Ms Swatantra Bala Chowdhary defeated her nearest Congress Rival, Dura Ram. The applicant stated that he had never met him. The Tribunal put to the applicant that if he had been working in the capacity he claimed in the by election in Fatehabad he would have to know the gender of the Congress Party candidate. The Tribunal put to the applicant that it found that this indicated that he was not involved in the Fatehabad by-election at all. It was not plausible that he would not know whether his candidate was male or female if he was involved in the election as he claimed. The Tribunal put to the applicant that his rendered the rest of his evidence of being at a rally and there being a big fight and everything that follows difficult to believe. The Tribunal stated that it could not believe he took part in the election and attended a rally where there was a big fight without him knowing that the candidate was a man. The Tribunal put to the applicant that it was of the view that this was fabricated. The applicant responded that these things happened to him. The Tribunal asked the applicant how this could have happened in a by-election, where he claimed to have a significant role, without him knowing that the Congress Party candidate was a man and not a woman. The Tribunal asked the applicant if he still wanted to maintain his claims of being at a rally and there being a shooting where someone died and which he was being sought. The applicant stated he did. The Tribunal put to the applicant that it rejected those claims and was of the view that they had been fabricated. It put to the applicant that it did not believe he was accused of murder and that he had been charged with the death of the Bajarang Dal member.”
There is no doubt that the Tribunal further considered country information in relation to the by‑election which clearly referred to "Mr. Dura Ram". It is noted from the extract of the Tribunal's findings set out earlier in this judgment that amongst other things, it clearly relied upon the issue of the gender of the Congress Party candidate in the by‑election.
The Respondent, when dealing with the question of the obligations of the Tribunal arising from the SAAP decision and in particular the obligation to provide the country information in writing, has relied upon the recent decision of North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965 (27 June 2005) (VBAP) and in particular the following paragraphs:-
“32 It was argued on behalf of the appellant that if a breach of s.424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 15; (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission.
33 As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

In my view, applying the reasoning of North J in VBAP which was followed by Moore J in NAUW v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1086 (1 September 2005), I am satisfied that the extracts from the findings and reasons of the Tribunal clearly indicate that there are many other matters upon which the Tribunal made findings which, regardless of the country information, which provide other grounds upon which the decision could not be impeached.
This is not a case where there is only one basis upon which the decision was made, namely country information. It is clear from the extract set out earlier in this judgment that there are many other bases upon which the decision may not only be supported but where, as already found, there does not appear to be any jurisdictional error. The facts as found by the Tribunal, including the significant finding in relation to the Applicant's credibility and specific findings in relation to his profile and activities in the Congress Party, are capable of standing alone and are not dependent upon the country information, albeit that in part that country information, at least to the extent that it refers to the gender of the candidate, was one of a number of factors taken into account.
On that basis, applying the authorities to which I have referred, this ground in relation to country information should fail notwithstanding the application of SAAP and consideration of s.424A of the Act.
In this case the Tribunal had in fact already made a finding that the Applicant was not involved in the by‑election. Hence the use of the Tribunal of the other information concerning Dura Ram simply added weight to the finding already made by the Tribunal in relation to that issue. The information is not covered by subsection 424A(1) of the Act.
Finally, in my view it is clear that there is no merit in the ground relied upon that the Tribunal should have provided a further hearing once it had been reconstituted. There is no such obligation upon the Tribunal and so much has been made clear by the Full Court of the Federal Court in Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 541 at 551-2, where the Court discusses the issue and then ultimately at page 554 of its judgment states the following:-
“In these circumstances, the submission that the Tribunal was required to invite the appellants to appear before it again must be rejected.”
Likewise in the present case, I accept that there is no basis upon which the Applicant can argue that there has been jurisdictional error arising from any claimed failure by the Tribunal to provide a further hearing after it had been reconstituted.
It follows, for the reasons given the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate: Brooke Evans

Date: 5 October 2005