MZWVY v Minister for Immigration
[2005] FMCA 1859
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1859 |
| MIGRATION – Protection Visa – whether jurisdictional error. |
| Migration Act 1958, s.424A |
| Ex parte H (2001) 179 ALR 425 |
| Applicants: | MZWVY, MZWWA & MZWWB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 129 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 6 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2005 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the Respondents: | Ms C.L. Symons |
| 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 $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 129 of 2005
| MZWVY, MZWWA AND MZWWB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an amended application filed 18 May 2005 an application is made seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 January 2005. In its decision the Tribunal had affirmed a decision of a delegate of the First Respondent not to grant protection visas to the Applicants.
The first Applicant is a male Indian citizen of Christian faith born on 9 December 1942. He arrived in Australia accompanied by his wife, son and daughter (the Applicant's family members) on 8 November 2003. The Applicant and the Applicant's family members were permitted entry to Australia on a tourist short stay visa and had each travelled on an Indian passport. On 19 December 2003 the Applicants applied for a protection visa. It is noted that only the first Applicant submitted his own claim to be a refugee and details of his claim were set out in the application.
A delegate of the First Respondent refused the application for a protection visa in a decision made on 28 April 2004. That decision was the subject of an application for review by the Tribunal which, as I have indicated, affirmed the delegate's decision. It is significant in the present case to note that in this instance the Tribunal proceeded to make a decision after inviting the Applicant to attend the hearing and otherwise complying with the requirements upon the Tribunal as set out in the relevant provisions of the Migration Act 1958 (“the Act”).
The usual letter inviting the Applicant to attend the hearing appears in the court book (page 65) and is dated 9 November 2004. It is addressed to the first Applicant though relates to all Applicants and clearly provides an invitation to attend a hearing then scheduled for 18 January 2005. As indicated, I am satisfied the letter complies with the requirements of the legislation.
The Applicant indicated to the Court that upon receiving that letter he noted a reference in the invitation to the phrase, "if you want to come to a hearing ...". He took that to mean that the attendance at the hearing was optional, which of course is a correct interpretation. He chose, however, not to attend the hearing, though instead by letter dated 20 November 2004 addressed to the Tribunal enclosed a submission together with a chronology of events concerning attacks on Christians and other media items concerning persecution of Christians in India.
Before this Court, perhaps not surprisingly, the Applicant to a large extent reiterated the claim which he had made before the Tribunal, either in the application or in the submission to which I have referred, forwarded in response to the Tribunal's invitation to attend the hearing.
The Applicant's Claim
The Applicant's claim is that he is Roman Catholic and prior to coming to Australia had practiced and preached Christianity in India. The claims were referred to in some detail by the Tribunal and I am satisfied have otherwise been accurately set out in the contentions of fact and law of the respondent as follows:
“ 8. The applicant claims that he is of Roman Catholic faith and, prior to coming to Australia, practiced and preached Christianity. He claims that, in recent times, Hindus and Muslims living in India have verbally expressed their hatred for Christians. He claims that threats have been made which have caused him to fear for his wellbeing and that of the applicant’s family members.
9. The applicant claims that in some (unspecified) instances, threats made verbally by Hindus and Muslims have been carried out on others and their families. He claims that these incidents have caused him to fear that the same will happen to him.
10. The applicant claims that the making of these threats, combined with a lack of support from authorities, has left him with no option but to apply for refugee status. He claims that the government of the state of Tamil Nadu is anti-Christian and will not protect him.
11. The applicant claims that in December 2002, he pleaded with members of his extended family (resident in Australia) to sponsor a short visit to Australia by him. He claims that is it now distressing for him and his family members to have to return to the constant threats and violence in his home town of Trichy.
12. The applicant further claims that he has attempted to prevent harm (to himself and his family members) by moving house. He claims this has placed him under significant financial strain.
13. The applicant claims that a neighbour, a Hindu family, was very much against his (Christian) preaching and used to invite his caste friends to his house. The applicant claims that these friends (and his neighbour) would then come up to his door and threaten him by saying ‘we will kill you, you are trying to convert our people’.
14. The applicant claims that incidents of this kind occurred regularly. He further claims that he made many complaints to the local police. The applicant claims that whilst, in the first instance, the local police came to the applicant’s rescue by attending his neighbour’s house and warning him against future interference, there was no discernible change in his neighbour’s attitude and in fact, the threats became worse.
The applicant claims that his neighbour (and his caste friends) have internal support from the police.
15. The applicant claims that he is afraid to go back to India as he has so many troubles in that country.”
It is noted that in its decision the Tribunal referred to the claims by the Applicant and indicated that although it had received the correspondence dated 20 November 2004 and then proceeded to determine the application on the evidence available to it, issues were highlighted where the Tribunal indicated that it may have wished to ask the Applicant further questions. In fact in its decision the Tribunal states the following:
“ …
The applicant was put on notice but the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. Although he provided some further information to the Tribunal, he did not give it the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered. Due to the lack of detailed information, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the convention.”
For reasons which will become apparent, it seems clear to me that the further contentions relied upon by the Applicant before this court do not necessarily advance the position much further than the material provided by the Applicant to the Tribunal, as to a large extent the material duplicates submissions made which accompanied the correspondence from the Applicant to the Tribunal dated 20 November 2004.
The Amended Application
The amended application itself does not provide in my view any or any adequate material upon which the court could conclude that there are any grounds identified upon which this court could entertain judicial review of the Tribunal decision. However, given that the Applicant is unrepresented I was prepared to accept for the present purposes that a passage which appears in the Applicant's contentions of fact and law filed 3 June 2005 effectively raises the grounds sought to be relied upon by the Applicant and I deem those to be the grounds of the application.
In the contentions of fact and law the Applicant states the following:
“…
The Tribunal failed to go through the facts of my case in detail. They have taken part of the facts for consideration and the other part has not at all been taken into consideration. The tribunal has failed to take my total facts for consideration. The Tribunal made a judicial error in making decision. The decision is ineffective, as it has taken irrelevant facts into consideration. The tribunal failed to take decisions in good faith as it has not taken my facts in total nor my evidences produced to them. The decision made to the RRT was contrary to the law. The RRT was unreasonable in it’s finding and on the decision made by them [sic].
In the contentions the Applicant otherwise seeks to refer to and repeat details set out in the correspondence to the Tribunal and in the Applicant's application. The First Respondent has in the contentions before this court fairly sought to extrapolate from the extract of the Applicant's contentions set out above what might be described as possible grounds of jurisdictional error, which include a breach of natural justice or procedural fairness, a failure to take relevant considerations into account, taking irrelevant considerations into account, bad faith or bias and/or Wednesbury unreasonableness.
In my view the issues extrapolated by the First Respondent may fairly be regarded as putting the Applicant's case at its highest. A proper reading, however, of the Tribunal's reasons in my view leads to the conclusion that none of the grounds can be made out in support of any claim of jurisdictional error. In my view there has not been any breach of natural justice or procedural fairness. The Tribunal clearly discharged the obligations it has to invite the Applicant to attend a hearing. This invitation could not on any view, as submitted by the First Respondent, be regarded as a hollow shell or an empty gesture, even though the Applicant declined the invitation to attend.
The findings otherwise made by the Tribunal which were adverse to the application were findings which were made against the backdrop of an opportunity being given to the Applicant to attend the hearing and provide further submissions. I am satisfied the findings by the Tribunal are not findings which could properly be characterised as "information" of a kind which would invoke the operation of s.424A of the Migration Act. I am otherwise satisfied that the findings and the procedure followed by the Tribunal could not be said in the circumstances to constitute a beach of natural justice or procedural fairness.
Although the respondent has extrapolated from the passage of the Applicant a possible ground of failure to take relevant considerations into account, it is noted that there are no particulars provided by the Applicant. Moreover I am satisfied on a proper reading of the decision that at any event the Tribunal has indeed thoroughly considered and dealt with the Applicant's claims of persecution and made findings on each claim which were reasonably open to the Tribunal.
Although the Tribunal may not have made specific findings concerning a neighbour of the Applicant, it is clear that that finding was not specifically required given the general findings reasonably open to the Tribunal which were adverse to the Applicant. Further, I am not satisfied that the Tribunal has taken irrelevant considerations into account. The Applicant has not identified the basis upon which that claim has been made.
In addition, whilst it may be genuinely felt by the Applicant that the decision is one which appears to be biased, I am not satisfied on the material before me that there is indeed evidence which would satisfy the tests for apprehended bias; that is, whether a fair-minded observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question being decided (see Ex parte H (2001) 179 ALR 425 at 434).
In this case it is clear to me that the Tribunal has approached its task in an appropriate manner, free of any suggestion of apprehended bias, as it has properly addressed the claims in some detail and there is nothing in the material before me to suggest that the Tribunal had failed to bring an impartial mind in its decision-making process regarding this claim.
To the extent that Wednesbury unreasonableness may apply in these circumstances, I am further satisfied that even if it does apply, on a fair reading of this decision by the Tribunal there does not appear to be any unreasonableness and as indicated earlier, findings were made by the Tribunal which were reasonably open on the evidence before it. For those reasons it follows therefore that the application as amended should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 19 December 2005
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