MZWUS v Minister for Immigration
[2005] FMCA 1425
•5 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWUS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1425 |
| MIGRATION – Protection Visa – Refugee Review Tribunal – judicial review – whether jurisdictional error – whether apprehended bias – proper for tribunal to question the applicant – not sufficient that applicant made to feel ‘nervous’ – no error. |
| Migration Act 1958, ss.417, 424A, 477(1A) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 VBAP of 2002 v Minister for Immigration and Multicultural Affairs (2005) FCA 965 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 |
| Applicant: | MZWUS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1663 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. S. Anger |
| Solicitors for the Applicant: | Sulaika Dhanapala |
| Counsel for the Respondents: | Mr. G. Gilbert |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1663 of 2004
| MZWUS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In an amended application filed 1 March 2005 the Applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 May 2004. The Tribunal had affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa. It is noted in this case that the decision of the Tribunal was formally handed down on 18 June 2004 and that the present application for review which was filed on 20 December 2004 was some five months outside the time limit prescribed by s.477(1A) of the Migration Act 1958 (“the Act”).
Accordingly, the First Respondent filed a notice of objection to competency on 17 March 2005. However, it was indicated quite properly by counsel for the Respondent at the outset that the threshold issue of whether or not there is a jurisdictional error needs to be determined and that upon determination of that issue, if it be determined in a manner adverse to the Applicant, then there is no need for the Court to then proceed to consider the issue of competency any further to the extent that in any event the application would be dismissed.
However, it is noted in this instance that the Applicant has sought to rely upon an affidavit affirmed on 20 December 2004, setting out some explanation as to the delay in filing the application. From a practical point of view however, it is my view, that notwithstanding the application filed by the First Respondent by way of notice of objection to competency, it is preferable to consider the threshold issue of whether or not there is indeed any jurisdictional error.
Background
The Applicant is a national of Sri Lanka presently aged 32 years. He is of Sinhalese ethnicity and practices Theravada Buddhism. The Applicant arrived in Australia on 10 March 1996, travelling on a student visa. He was next granted a Sri Lankan (temporary) subclass 43 visa valid until 31 July 1997. On 4 March 1998 he applied for a special eligibility (residence) visa as a special need relative. This application was in relation to an Australian citizen to whom the Applicant was subsequently married on 22 April 2000.
A delegate of the First Respondent refused the application. An appeal to the Migration Review Tribunal was unsuccessful, the decision being affirmed on 9 April 2002. The Applicant's marriage was subsequently dissolved. The Applicant lodged an application for a protection visa on 16 April 2003. A delegate of the First Respondent refused the application on 8 August 2003. Application for review of this decision was then made to the Tribunal on 4 September 2003. The Applicant attended the hearing before the Tribunal on 19 January 2004 and was assisted by a Migration Agent.
After the adverse decision of the Tribunal, the Applicant applied for the exercise of ministerial discretion pursuant to s.417 of the Act. Upon rejection of that application, the present application was filed in this Court.
The Tribunal Decision
In the Tribunal decision the details of the claim and evidence have been set out. Those details have been, in my view, accurately summarised in the First Respondent's contentions of fact and law in the following terms:
·The Applicant's claim concerned problems which he said resulted from his family providing accommodation for four young Tamil men in 1994.
·The Applicant claimed that neighbours accused him of betraying the Sinhalese by supporting the Liberation Tigers of Tamil Eelam (LTTE).
·Police and army officers visited the family home and arrested both the Applicant and his father.
·Documents relating to the LTTE were allegedly found in the annex where the Tamils were staying.
·The Applicant and his father were taken to the police station and interrogated and mistreated.
·The Applicant's father was charged with offences under the Prevention of Terrorism Act for providing shelter to the Tamil youths, and for failing to register them as living at his household.
·The Applicant's father was released on a bond after paying a fine.
·The Applicant's father was able to use influence to secure the Applicant's release some days later, also on good behaviour bond, but on conditions that he must stay in Sri Lanka and report monthly to the police station.
·Subsequent to his release, Sri Lankan police visited the Applicant's home and harassed him on numerous occasions, also warning him not to think of escape.
It is noted that during the course of the hearing before the Tribunal, the Applicant stated he would be able to obtain documentation in relation to the charges against his father though not against himself. There is no dispute that the Tribunal gave the Applicant 10 days in which to provide the information, though the Applicant was unable to do so. The Tribunal was advised by the Applicant and his Agent that the documents were unavailable because they had been destroyed in a flood and/or the authorities did not keep documentation beyond a five-year period.
The Tribunal after reciting in some detail the claims and evidence and in particular after reference to matters raised during the course of the hearing in some detail, then proceeded to make its findings. Under the heading ‘Findings and Reasons’, the Tribunal after further considering country information, made clear adverse findings which in summary may be regarded as significant findings against the Applicant's credibility. Significantly it made the following findings:
·It found that neither the Applicant nor his father, were ever charged with offences under the Prevention of Terrorism Act nor were they of any related interest to the Sri Lankan authorities.
·The Applicant had fabricated his evidence in order to bolster his claim for protection.
·The Tribunal did not accept the Applicant or his father ever had four Tamil men living on their property, that the Applicant supported those individuals with money, that he was said to betray the Sinhalese people, that the family property was raided by Sri Lanka police or army officers, that LTTE literature was found at the property, that the Applicant and his father were harmed physically at the property by those raiding it, that they were taken to the police station, interrogated and harmed physically or tortured.
·The Tribunal did not accept what the Applicant said following from the attendance at the police station and found the Applicant had fabricated that evidence.
·The Tribunal found the Applicant had not been imputed with an adverse political opinion nor was perceived as a traitor to his race or religion for allegedly helping ethnic Tamils.
·The Tribunal did not accept the Applicant was at risk from the LTTE on his return to Sri Lanka.
·As the Applicant had not identified any problem relating to his ethnicity, being a person from the majority ethnic group, there was no real chance of persecution for this reason if he were to return to Sri Lanka.
·Because the Applicant did not identify any problems in relation to his religion, a similar finding was made in relation to the issue of religion.
·The Applicant's claim that he would be required to hide on his return because of the law and order situation was rejected by the Tribunal, taking into account the improved security situation, in particular since December 2001.
·The long delay in lodging the protection visa application some seven years after arrival in Australia did not indicate to the Tribunal the Applicant had a well-founded fear of persecution for any convention reason at the time of his arrival in Australia.
·The Applicant's claim that he obtained his passport secretly through friends and left the country secretly was not accepted.
The Tribunal, after making those significant findings, then concluded there was not a real chance of persecution for any convention reasons claimed.
The Amended Application
At the hearing, the Applicant was granted leave to further amend the application by adding a further ground 8 as follows:
“The Tribunal erred by contravening the requirements of s.424A of the Migration Act 1958.
Particulars
The Applicant relies upon the particulars set out in paragraph 31 of the Applicant's contentions of fact and law filed 1 April 2005.
Paragraph 31 of the Applicant's contentions of fact and law provides the following:
“Section 424A provides that the Tribunal must give to an applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming a decision that is under review’ and to invite the Applicant to comment upon such information. This opportunity was not given to the Applicant:
(1) Why the Applicant filed an Application for Protection 7 years later?
(2) Why the Applicant could not provide copies of documents relating to charges made by the Police?
(3) Tribunal's disbelief of Applicant’s evidence as to why Sri Lankan authorities persecuted a ‘Sinhalese’?”
Contravention of Section 424A
It is clear from the paragraph set out above from the Applicant's contentions of fact and law that there are three issues raised which are claimed to be "information" for the purpose of s.424A of the Act.
In my view, those factors relied upon by the Applicant do not constitute "information" for the purpose of s.424A of the Act. I accept, as submitted by the First Respondent, that those factors are indeed what might simply be described as matters of evidence. Each of them relates to separate issues which the Tribunal was entitled to consider and then make appropriate findings of fact. Those issues, which include delay, the failure of the Applicant to provide copies of documents relating to charges and the Tribunal's disbelief as to the Applicant's evidence as to why Sri Lankan authorities persecuted Sinhalese were all matters agitated during the course of the hearing which simply involved an exploration of the claim and led to a finding of fact. I do not regard any of those factors as being properly classified as "information" for the purpose of s.424A of the Act.
It is also clear as submitted by the First Respondent, that all of those issues were clearly agitated for the hearing and were matters addressed, albeit unsuccessfully, by the Applicant and his Agent. Accordingly, the ground relying upon s.424A should fail. It is noted further that had there been a breach of s.424A then the recent decision of the High Court in the matter of SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 would apply.
However, the application of that authority as submitted by the First Respondent, needs to be considered in the present case in the light of the decision of North J in VBAP of 2002 v Minister for Immigration and Multicultural Affairs (2005) FCA 965 where his Honour states the following:
“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 the present case, for reasons which will become evident in considering the issue of s.424A even if the Court wrongly found that the matters referred to could not constitute "information", I am otherwise satisfied that there was ample material before the Tribunal set out earlier in this judgment, which could properly be characterised as adverse credibility findings, which on their own would provide a basis upon which the decision of the Tribunal could not be impeached. I shall consider the other grounds presently.
Other Grounds
The other grounds relied upon in the amended application and pursued in the Applicant's contentions of fact and law, in my view, appear to rely upon a jurisdictional error claimed to arise from a denial of natural justice and/or procedural fairness or identifying a wrong question relied upon irrelevant material or that the Tribunal ignored relevant material.
In dealing with the general issue of a denial of procedural fairness, it seems to me on a proper reading of the Tribunal's decision that it has merely embarked upon a fact-finding mission which ultimately led it to make significant adverse credibility findings against the Applicant. I cannot see any failure on the part of the Tribunal to properly consider the case put before it by the Applicant.
Whilst the Tribunal may have had issues of concern and it is noted that as part of the argument of a denial of natural justice, it is suggested that the Tribunal made the Applicant nervous enough to stop providing all relevant information by raising credibility issues. In my view, that of itself cannot in this instance sustain a ground that the Applicant was denied natural justice. Indeed in the course of an exchange between the Applicant and the Tribunal, it is appropriate for the Tribunal if it has concerns to raise them with the Applicant. By doing so, whether it makes the Applicant "nervous" or not should not in the circumstances of this case provide a basis upon which it could be claimed there has been a denial of natural justice.
Although in passing, a suggestion was made that the conduct of the Tribunal may have constituted apprehended bias, it is noted that that claim has not been squarely raised in the grounds and no application was made to amend the grounds accordingly. In my view, it was entirely appropriate that no application was made to amend, as the circumstances of this case would not lead the Court to make a finding of apprehended bias and there does not even appear to be a prima facie suggestion of apprehended bias.
The mere exchange between the Tribunal and the Applicant, whereby the Tribunal raises its concerns as to the Applicant's credibility does not of itself provide any or any proper basis upon which it could be claimed there has either been a denial of natural justice and certainly does not raise a suggestion of apprehended bias.
The other issues raised by the Applicant, in my view, do not provide a basis upon which this Court could properly conclude there has been 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).
In the course of its reasons, the Tribunal certainly addressed the claim as presented by the Applicant and essentially rejected the key factors relied upon by the Applicant in support of his claim. To the extent that the Tribunal may have relied upon the issue of delay, it is clear to me, that reference to that issue was made only after the significant and what I would describe as fatal findings were made in relation to the Applicant's credibility.
To that extent, if there be any criticism available in relation to the Tribunal's manner of dealing with the issue of delay, then in my view, that would not provide any basis upon which the Applicant should succeed upon judicial review. I do not see any other basis upon which the Court could conclude from the Tribunal's reasons that it has misapplied the definition of the term "well-founded fear" or that it has otherwise failed to take into account relevant material.
Once the Tribunal has made the significant adverse findings as to credibility, then it is clear that it was not required to proceed to make any further findings, including findings as to whether the Applicant had a subjective fear of persecution. In considering the grounds set out in the amended application and the particulars subjoined to each ground, it is my view, that the Applicant in this instance has had an appropriate opportunity to present a claim thoroughly and the claim was considered by the Tribunal in an appropriate manner, free of jurisdictional error.
I accept as submitted by the First Respondent, that in this instance the contentions are indeed without foundation. As the decision by the Tribunal, after considering in some detail the claim, ultimately resulted in what has been accurately described as a "wholesale rejection" of the Applicant's credit, I accept as a matter of law that that is a question of fact entirely a matter for the Tribunal (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287).
Accordingly, it follows that in my view, there is no jurisdictional error and the application should be dismissed with costs. Although no formal application was made to add Refugee Review Tribunal as a Second Respondent, it is my view, that in these applications it is appropriate to do so and therefore apart from granting leave to the Applicant to amend the application in the manner described, the Court would also grant leave to the Applicant to join as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 5 October 2005
0
16
1