MZWTR v Minister for Immigration
[2005] FMCA 1415
•7 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWTR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1415 |
| MIGRATION – Protection Visa – Refugee Review Tribunal – judicial review – no jurisdictional error. |
| Selvadurai v MIEA (1994) 34 ALD 347 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZWTR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1563 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 October 2005 |
REPRESENTATION
| Applicant: | In person (VIDEO LINK IN SYDNEY) |
| Counsel for the Respondents: | Mr E.J.C. Heerey |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Applicant shall be granted leave to add the Refugee Review Tribunal nunc pro tunc as a Second Respondent.
The Second Respondent shall be granted leave to file and serve a ‘Notice of address for service’.
The application as amended be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1563 of 2004
| MZWTR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application there are two preliminary issues. The first relates to the addition of Refugee Review Tribunal (“the Tribunal”) as a Second Respondent, which I allowed at the commencement of these proceedings. The second issue concerns an application for adjournment made by the Applicant who is unrepresented towards the end of the hearing.
During the course of the hearing, I refused the application for adjournment and indicated that I would set out in this judgment the reasons for the refusal of the adjournment. It is noted the application was filed on 1 December 2004, albeit subject to an amended application on 27 June 2005. The application seeks judicial review of a decision of the Tribunal dated 14 October 2004, whereby the Tribunal had affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
Orders were made by consent on 11 May 2005 requiring the Applicant to file and serve an amended application with proper particulars by
13 May 2005 together with contentions of fact and law. The Applicant then sought to have the matter transferred to the Sydney Registry of the Court, and that application was refused on 8 June 2005. Other orders were made which varied the date for the filing of an amended application and contentions of fact and law by extending that date from 13 May 2005 to 29 June 2005. The Applicant complied with those orders by filing an amended application on 27 June 2005 together with a document entitled ‘My Contentions of Fact and Law’.
That chronology of events demonstrates that the Applicant has had more than an adequate opportunity to arrange legal representation.
He claimed before the Court on the day of the hearing that he was unemployed and upon becoming employed, believed he would then be able to obtain sufficient funds to retain the services of a lawyer.
Having regard to the length of time that has passed since the decision was made by the Tribunal in this matter and since the application was filed, it is my view that it would not be appropriate to grant the adjournment. In addition, having considered the matter on the material currently before the Court I further conclude that in any event, in the absence of an arguable case, it would be futile to further adjourn this application. For those reasons the application for adjournment was refused.
The Applicant is a 28-year-old male citizen of India who arrived in Australia on 6 October 1998. On 20 January 2004 he applied to the Department for a protection visa. The basis of the claim for refugee status was set out in a written statement in support of the refugee visa application. Essentially, I accept that he claimed a fear of persecution in India because of an imputed political opinion. He specifically claimed he was under continuous persecution because of his membership of various parts of the Congress Party and the adverse attention of opposing parties including bajrangh Dal and Shiv Sena.
The Applicant claimed to have been attacked by extremist members of those organisations in 1992 and 1998, each time shortly after an election. It was further claimed by the Applicant that his father was an inspector of the Police Department and was responsible for the arrest and imprisonment of some terrorist members of the Kuldeet Singh Kippa and Gurgent Singh and Budhsingh Wala, which led to two to three unsuccessful attacks on his father in 1994 to 1995.
It was claimed security was arranged for his father but the groups went underground and turned their attention to the Applicant. The Applicant claimed his father could not obtain protection from terrorists because the BJP and Akali Dal were in power and were aware of the Applicant's political activities. The terrorist group damaged his home a report was lodged but no action taken. He claims due to political reasons members of the BJP and Shiv Sena took advantage of the situation and tried to harm the Applicant.
The Applicant's claims include a further claim that he went to stay with his uncle in June 1998 but his father continued to receive threatening telephone calls from terrorist groups and his uncle organised a student visa for the Applicant to travel to Australia. While in Australia the Applicant claims his father has continued to receive threatening calls from terrorist groups and advised that BJP and Shiv Sena workers continued to search for the Applicant and his father advised him that he should not return to India, otherwise he will definitely be killed by terrorist groups and persecuted by rival parties.
The Amended Application
In the amended application before the Court and the Applicant's contentions of fact and law, it is clear that by inviting the Court to conclude there has been jurisdictional error, the Applicant in both documents sets out particulars. Those particulars include matters which invite merit review. By way of example the Applicant claims the Tribunal has -
“not taken into account the hot political situation in the Punjab which is in a constant state of change.”
He further claims in the application that he ‘strongly’ disputes -
“the conclusion that the situation in the Punjab has returned to normal nearly 12 years ago and the human rights situation in India has greatly improved since that time.”
In relation to country information he states that the information -
“will show that the Punjab still remains a volatile area and this was not taken into account by the tribunal.”
The Applicant refers to the conclusion by the Tribunal that if he did not feel safe in one region he could have changed job and relocated to another part of India following alleged threats. He strongly disagrees with that conclusion. He otherwise indicated to this Court that he has trouble understanding the legal issues and perhaps not surprisingly, given he is unrepresented, he has simply sought to express his concern should he be required to return to India and otherwise expressed views where he clearly disagrees with the conclusion drawn by the Tribunal.
The Tribunal Decision
The Tribunal's decision referred to country information and also noted that the Congress Party according to that information won power in the last Punjab legislative assembly election in February 2002 and remains in power there, and that local government elections had taken place peacefully in Punjab in June 2003.
Of significance is the finding generally by the Tribunal that the Applicant was not a credible witness. Whilst it accepted that the Applicant's father had continued to work as a policeman, it did not accept that threats had been made against the Applicant's life or that his life would be in danger in India due to his actual or imputed political profile.
To the extent that the Applicant's claimed fear was based on his father's arrest and imprisonment of terrorist groups, the Tribunal rejected that part of the claim on the basis that reports all referred to events between 1989 and 1992 and that his father had worked continually in the police force since that time and continued to work and reside in his home town without any apparent problem, and it would appear he will continue to work in that capacity until retirement in 2008.
The Tribunal otherwise considers that if indeed a terrorist group had an adverse interest in the Applicant's father, they have had ample opportunity to pursue those interests and have not done so in the relevant period. The Tribunal dealt with the claimed political activity of the Applicant and found that the nature of his involvement in political activity did not suggest that he would be of adverse interest to opposing parties.
As indicated, the Tribunal took into account country information.
It ultimately concluded that the decision of the delegate should be affirmed and did so after finding that it was not satisfied that the Applicant is a person to whom Australia has protection obligations.
It was of some significance that during the course of its findings the Tribunal considered the delay in the Applicant's application for a protection visa, which it concluded indicated an absence of a real or genuine fear of persecution.
The Tribunal noted the Applicant remained in Australia for five years before applying for a protection visa and that the application for that visa was lodged two days before his bridging visa expired. The Tribunal relied upon the authority of Selvadurai v MIEA (1994) 34 ALD 347.
Jurisdictional Error
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).
Submissions and Reasoning
The Respondent submitted that essentially in this application the Applicant's amended application and contentions are directed to the merits of the Tribunal's findings of fact. Having considered the amended application and the contentions, part of which are recited earlier in this judgment, it is my view that the Respondent's submission is correct. This is clearly an attempt by the Applicant to agitate for the merits of the application and he has not provided in the material before this Court any or any proper basis upon which this Court could conclude that there has been jurisdictional error.
It is clear to me that the claims made by the Applicant were properly considered by the Tribunal and a conclusion reached based upon the material provided by the Applicant, and also appropriately based upon substantial relevant country information. The Applicant while seeking to challenge the country information does not, in my view now advance the claim any further and it is clear to me in this instance that the Tribunal was entitled to take into account the information then available to it and was also entitled to make the assessment of the Applicant's credibility.
The Tribunal ultimately reached conclusions of fact which were reasonably open to it and in my view free of error. Some criticism was made of the Tribunal's findings in relation to the capacity of the Applicant to relocate. I accept however, that whilst reference was made to that issue, it did not form an essential part of the findings and reasons. The Tribunal had clearly rejected the Applicant's claims and made an adverse assessment of his credibility and ultimately did not need to draw any further conclusion in relation to the Applicant's capacity to relocate.
Accordingly, it follows that the application should be dismissed with costs, which at the hearing were indicated by the Respondent to amount to $6500.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 7 October 2005
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