MZWUA v Minister for Immigration
[2006] FMCA 534
•18 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWUA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 534 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether breach of s.424A of Migration Act 1958 (the Act) – whether Tribunal erred in its interpretation of s.91R of the Act – Tribunal not required to reveal its thought process – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R, 424A |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | MZWUA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1614 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 11 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr W. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1614 of 2004
| MZWUA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 October 2004. The Tribunal decision affirmed a decision of a delegate of the First Respondent refusing to grant to the Applicant a protection visa.
The Applicant is a citizen of India who arrived in Australia on 15 September 2003 as the holder of a sponsored visitor visa issued in New Delhi on 28 August 2003. He was the holder of an Indian passport issued on 4 December 2000. On 14 October 2003 the Applicant applied for a protection visa. On 31 March 2004 a delegate of the Minister determined that the Applicant was not a person to whom Australia had protection obligations and refused the application. On 27 April 2004 the Applicant applied for a review of the delegate's decision to the Tribunal. The Tribunal conducted a hearing on 13 August 2004 and subsequently delivered its decision dated 29 October 2004 affirming the delegate's decision to refuse the grant of a protection visa.
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).
The applicant's claim
The Applicant had claimed to face persecution from the police force of the state and workers of the Congress Party. He claimed that this would occur because he is considered responsible for the defeat of the Congress Party candidate. As a priest of the Sikh temple the Applicant is also considered to be harbouring terrorists. In a statement annexed to his application for a protection visa the Applicant referred to atrocities against the Sikhs, including the storming of the Golden Temple in June 1984 and the killing of innocent Sikhs by Hindu rioters. The Applicant had claimed that his brother and cousin were friends of a member of Khalsa Commando Force wanted by the police. It was claimed that the Applicant's brother and cousin were taken into custody in 1987 on suspicion of being members of the Khalsa Commando Force and were tortured by police. They were released at the request of a parliamentarian in July 1987.
The Applicant claimed that he had been active in various aspects of the All India Sikh Students Federation (the AISSF). He was active in various elections and helped organise protests. In February 1992 while leading a procession, congress workers attacked the Applicant and other party workers and the Applicant claimed that he was amongst those injured and hospitalised. He referred to various arrests and claims of mistreatment from the authorities. He made particular reference to the period from 2000 onwards when he began his role at the temple. He claimed that his past history made him of particular interest to the police and that he and his family had suffered mistreatment at the hands of authorities and political opponents.
The tribunal decision
In its decision the Tribunal recites the Applicant's claims, including a detailed reference to documentary evidence, submissions made by the Applicant, the interview of the Applicant with the delegate and evidence of the Applicant at the Tribunal hearing on 13 August 2004. In its findings and reasons it is clear that the Tribunal rejected the claim the Applicant was involved in working for political candidates. It did so after describing the Applicant's claims in the following terms:
“The applicant has presented claims in three broad areas. Firstly, he has claimed that his family has a connection with Sikh terrorists in the Punjab. Secondly, he himself has, according to his claims, been involved in various respects with the AISSF. Thirdly, both he and his father have worked as the granthi at a Sikh temple and this has brought them under suspicion for harbouring terrorists. The applicant's claims suggest that these various elements have a cumulative effect that would make him of particular interest to the police. The applicant has claimed that he and other members of his family have suffered repeated mistreatment at the hands of the authorities and their political opponents.
The Tribunal has considered firstly the applicant's own claims with regard to his involvement in the AISSF. He has claimed that he joined the AISSF in 1991 and supported the party in a number of election campaigns. The applicant claimed in his written claims to have become the president of the AISSF in his area and, at the hearing, claimed to have been president of a five-member committee.”
The Tribunal then proceeds to set out questions that it raised with the Applicant during the hearing and then proceeds to make the following finding:
“Despite his claimed involvement in a number of electoral campaigns, the applicant was able to provide only the most vague and general evidence as to the policies of the candidates and the message that he himself claimed to have promoted on their behalf. In light of this, the Tribunal is unable to accept that the applicant was ever involved in canvassing, campaigning or otherwise working on behalf of political candidates as claimed.”
The Tribunal then considers documentary material provided by the Applicant and otherwise further considers the evidence. Having done so, it then concludes as follows:-
“... the Tribunal cannot for the reasons set out above accept this as a genuine account of the applicant's involvement in the AISSF. It finds that this document has been contrived as a means of bolstering his claims.
The applicant's evidence as to his leadership role with the AISSF was equally unimpressive. ...
Although the applicant claimed to have been the president of a committee responsible for investigating attacks on Sikhs and receiving grievances on behalf of Sikhs, he was able to provide only scant evidence as to the manner in which the committee sought to act on reported harassment or killing. ...”
Other adverse findings were made by the Tribunal which, in summary form, include the following:
·The Tribunal did not accept the Applicant was ever an active member of the AISSF.
·The Tribunal found that the Applicant's initial oral evidence about the attack in 1992 to be at odds with his written claim that the attack had occurred while he "was leading a procession along with our party workers".
·The Tribunal does not accept that the Applicant was ever actively involved in the AISSF.
·The Tribunal does accept that the Applicant's family had some connection with Sikh militants.
·The Tribunal considered the profile of the Applicant's father and concluded that the Applicant was not a reliable witness in this regard.
·The Applicant demonstrated willingness to exaggerate and invent claims in relation to the profile of his father and his own involvement in AISSF. In particular the Tribunal considered the Applicant sought at the hearing to invent claims about past persecution of his father in an effort to explain the interests of the authorities in his father following the assassination of a Minister.
·The Tribunal did not accept that the Applicant's father was detained in June 1987 and considered this was a matter invented by the Applicant at the hearing to exaggerate his father's profile. The Tribunal considered that the Applicant's claim that the authorities had got hold of the Applicant's father on many occasions was simply an attempt to exaggerate the police interest in his father.
·The Tribunal did not accept as credible the Applicant's claim that his father was arrested under the Terrorism and Disruptive Activities (Prevention) Act in late 1995 as claimed.
·The Tribunal did not accept that the Punjabi authorities had reason to suspect the Applicant's father of involvement in Sikh militancy in 1995 at a time when the militant threat had greatly receded.
·A further factor which undermines the credibility of the Applicant's claim in relation to arrest and detention of his father, it was found by the Tribunal to be the fact that the Terrorist and Disruptive Activities (Prevention) Act under which the Applicant claimed that his father had been arrested had lapsed on 23 May 1995.
·Although it accepted that the Applicant's father died on 1 February 1996, the Tribunal did not accept that the Applicant's father's death was caused by police mistreatment.
·The Tribunal accepted the Applicant's brother and cousin suffered problems because of an association with Sikh terrorists, however, found it significant that although the Applicant's brother fled in 1989 and his cousin disappeared at that time, the Applicant indicated at the hearing that he personally had not suffered any problems with the police prior to commencing as granthi at the temple.
·The Tribunal found that a past connection with Sikh militants through family members and the authorities' past interest in those family members were not matters that affected the perception of the Applicant by the authorities in 2000.
·The Applicant has not suffered such harm at the hands of terrorists in the past and the Tribunal finds that the Applicant would not face a real chance of persecution at the hands of terrorists if he were to return to India now.
·The Tribunal did not accept that the Applicant would have been of any interest to the authorities or in any way suspected of involvement in Sikh militancy in the years from 2000 to 2003.
·The Tribunal found that the Applicant's claims cannot be sustained in the light of country information about the current situation in Punjab.
·The Tribunal found other aspects of the Applicant's claims to be highly unconvincing.
·The Tribunal had a number of concerns about documents produced by the Applicant.
·The Tribunal did not consider the evidence of the Applicant's uncle to be at all reliable.
·The Tribunal did not accept documents from a doctor at a nursing home to be accurate.
·The Tribunal was prepared to accept the Applicant's brother had links with militants in the manner described but did not consider the Applicant's brother's evidence outweighs the significant concern the Tribunal had with regard to the Applicant's claims about the authorities treatment of his father and himself. The Tribunal was willing to accept medical evidence the Applicant is suffering depression and anxiety and that he has scars on his arms and legs.
·The Tribunal did not accept that any anxiety and depression being experienced by the Applicant or any physical scars are as a result of any Convention-related persecution in India.
I have deliberately set out in detail, albeit in summary form, key findings by the Tribunal, most of which were adverse to the Applicant's claim. It is clear from the summary that a very wide range of issues were considered by the Tribunal and then the subject of detailed findings and reasoning.
The applicant's submissions
The Applicant claimed the Tribunal decision was affected by jurisdictional error in that the Tribunal failed to take into account relevant material. The Applicant relied upon an application filed 13 December 2004. In that application the particulars relied upon as constituting jurisdictional error include the following:
·The Tribunal misinterpreted and/or misunderstood the criterion that the Applicant has to be eligible for the grant of a visa and that it failed to consider the Applicant's claims and the evidence in support of these claims.
·It failed to deal with and/or consider the case as presented and/or the claims of the Applicant.
·The Tribunal misunderstood the meaning of "persecution" in the Convention and pursuant to section 91R(2) and in particular misunderstood the meaning of "serious harm" in finding that the harm the particular has experienced in the past did not amount to serious harm.
·The Tribunal failed to consider whether the facts as it found had occurred led to the conclusion that the Applicant had a well‑founded fear of persecution for a Convention reason.
·The Tribunal misunderstood what follows from its finding that the persecution does not have an official quality.
·The Tribunal failed to consider whether the motive for the harm threatened on him was because of a political opinion held by or imputed to the Applicant.
·The Tribunal failed to consider the Applicant's claim that he suffered persecution because of his religion.
It was further claimed that the Tribunal failed to alert the Applicant to material adverse to the Applicant's case and accordingly the Tribunal had breached the rules of natural justice and/or had denied the Applicant procedural fairness. A further assertion was made that the Tribunal asked the wrong question, identified the wrong issue and took into account the wrong material as a consequence of which the decision was made without jurisdiction or affected by error of jurisdiction.
The Applicant, who is unrepresented, relied upon contentions of fact and law filed 2 May 2005. In seeking to deal with the matters raised in his application it is clear that the Applicant disagreed with the Tribunal's findings and specifically he states:
“I disagree that my evidence was vague and general as to the policies of the candidates and the message that I was promoting on their behalf. I say that if all the written and oral evidence was considered by the tribunal, then that is not the conclusion it could properly have reached.”
When dealing with the issue of serious harm the Applicant states the following:
“I say that given the tribunal does accept that the applicant's family had some connections with Sikh militants ... and it accepts that the applicant's brother was friends with these people and that one of them attended his sister's wedding in 1989 and it also accepts that the applicant's brother and his cousin were taken into custody on suspicion of militant involvement in June 1987 and it also accepts that the applicant's brother was again taken into custody and tortured in January 1989 and it also accepts that the applicant's father carried out his duties as priest and received guests at the temple for a long period, including through the height of the militancy. Given this family background and the problems the applicant faced, I say this amounts to serious harm.”
The contentions otherwise restate the particulars in the application.
At the hearing, the Applicant, assisted by an interpreter, handed to the court handwritten notes annexed to which were attached untranslated Punjabi newspaper articles. The Applicant also handed to the court transcript of the proceedings before the Tribunal on 13 August 2004. The transcript was provided after the Applicant sought to then rely upon further contentions of fact and law filed on 10 October 2005 which appeared identical to the earlier contentions, save for an additional typed page referring to an extract from the transcript. I was prepared to accept the transcript solely for the purpose of verifying that the extract referred to by the Applicant was accurate. That extract contained the following:
“… But I should say to you, and I’ll put it to the applicant as well, that I do have information that it is very easy to obtain false documents in India, and this applies to things like passports, birth certificates, certificates regarding education and career, marriage certificates and ID cards and those types of things. The first information reports are also mentioned as something that can be obtained as false documents.
INTERPRETER: You can ring and make telephone inquiries.
MR SMYTH: Okay. As I say, I haven’t actually seen the translation of the first information report yet, so I will need to consider that; and the fact that false documents are available doesn’t mean that I can assume that your documents are false. But I’m simply alerting you to the fact that I have that information. Okay. Now, I also noted that when you went to see a Dr Karma in Bundoora, that you had some difficulty communicating with him due to language problems.”
(Transcript p.65 lines 21 to 36)
Referring to that extract the Applicant in the additional written submission filed 10 October 2005 sought to argue that the Tribunal had failed to put information regarding its concerns to the Applicant and it had accordingly breached s.424A of the Migration Act 1958 (the Act). The Applicant otherwise claimed that the Tribunal had failed to advise the Applicant that his credibility was in issue.
Respondents' contentions
The First Respondent submitted that the Applicant's contentions seek to review the merits of the Tribunal's decision and/or challenge a number of findings made by the Tribunal. It was submitted that the Tribunal summarised the claims and evidence of the Applicant and that those claims were extensively dealt with by the Tribunal in its reasons. It was submitted that the Applicant's contentions do not demonstrate any jurisdictional error. The Tribunal was not required to accept the Applicant's claims uncritically. It was submitted that the Tribunal did not accept as a matter of fact that the Applicant had been subjected to harm at all, let alone serious harm for any Convention reason. It had properly referred to s.91R of the Act and it otherwise it correctly set out the law in relation to the issue of whether the Applicant's fear of persecution was well founded. The Tribunal otherwise did not fail to consider whether the Applicant had suffered any Convention-related harm in the past. It specifically considered actual or imputed political opinion and the claims presented by the Applicant.
Reasoning
On a proper reading of the Tribunal's very detailed decision, I am satisfied that it has considered extensively the claims made by the Applicant. It is not required to do more than bring to the attention of the Applicant the material presented to it where it has some concerns and it did so clearly in the course of the hearing.
I cannot see any breach of s.424A of the Act arising from the extract referred to by the Applicant. The country information was in fact made available to the Applicant.
The Tribunal is not required to reveal its thought processes at the hearing or to divulge in advance its reasoning in relation to the claims and evidence before it, including country information.
It is evident from the detailed summary of the Tribunal's findings, together with its consideration of the claims and evidence that it properly embarked upon its fact-finding task in this application.
It has made significant adverse credibility findings which are a matter for the Tribunal. It has done so, in my view, free of any jurisdictional error. I do not detect any error in the Tribunal's process of a kind which might be characterised as failing to consider relevant material and/or misdirecting itself in relation to the law concerning section 91R or relevant law in relation to the question of whether the Applicant's fear of persecution was well founded.
When dealing with documentary material, the Tribunal's reasons clearly provide a basis upon which it has assessed that material and to a large extent rejected it as being genuine. It has raised the issue of the problem with documents with the Applicant during the hearing and having done so, it was then incumbent upon the Applicant to respond.
I accept the submissions for the First Respondent that essentially this application seeks to review the merits of the Tribunal's decision, so much is clear from the Applicant's contentions and the application itself. It is clear the Applicant disagrees with the conclusions of the Tribunal and attempts to assert that some jurisdictional error has occurred. However, the findings of the Tribunal summarised earlier in this judgment reveal, in my view, a decision-making process free of jurisdictional error and one where the Tribunal, in a very thorough and detailed analysis, has properly considered the claims made by the Applicant. Those claims were very detailed and relied upon numerous documents, all of which were given proper and due consideration by the Tribunal.
I should also add that although the court noted that the Applicant sought to rely upon untranslated newspaper reports at the hearing, I conclude that it is not appropriate for the court to receive those reports on judicial review and that the transcript that the Tribunal received was only for the limited purpose of verifying that it contained the extract relied upon by the Applicant. That extract, as I have indicated however, does not support a conclusion there has been a breach of s.424A of the Act, as it simply reveals that the Tribunal referred to country information. I am satisfied that the information had been put to the Applicant and indeed, the Applicant had been invited to comment on country information and indeed, responded after receiving what is described as a s.424A letter (Court Book page 161 to 164).
For the reasons given it follows the application should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 April 2006
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