MZWXL v Minister for Immigration
[2005] FMCA 1767
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWXL v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1767 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdiction error – subjective fear – option to relocate – discrete findings about relocation – application dismissed. |
| Judiciary Act 1903, s.31B Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 |
| Applicant: | MZWXL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 121 of 2005 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 10 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| The Applicant: | In person (assisted by interpreter, Ms Chopra) |
| Counsel for the Respondents: | Mr W.S. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Leave is granted to join the Refugee Review Tribunal as Second Respondent.
The Application for Review filed on 1 February 2005 is dismissed.
The Applicant pay the First Respondent's costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 121 of 2005
| MZWXL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
By an Application for Review filed on 1 February 2005 the applicant seeks to review the decision of the Refugee Review Tribunal (the RRT) to affirm the decision of First Respondent's delegate to refuse the applicant a protection visa.
The applicant is a 33 year old male Indian citizen of Sikh religion.
He arrived in Australian on 23 January 2004 as the holder of a short stay tourist visa which was issued in Delhi on 15 January 2004.
On 23 February 2004 the applicant applied for a protection visa.
The applicant's claims are detailed in his response to questions 39 to 44 in the application. General country information and other material was submitted by the applicant in support of the application.
On 1 April 2004 a delegate of the first respondent determined that the applicant was not a person to whom Australia had protection obligations and refused the application. On 4 May 2004 the applicant applied for a review of the delegate's decision to the RRT. The RRT conducted a hearing on 7 December 2004 and it subsequently affirmed the delegate's decision.
On 1 February 2005 the applicant made application to this court pursuant to s.39B of the Judiciary Act 1903 in respect of the RRT’s decision.
As stated to the applicant at the commencement of this hearing, the decision of the RRT was a privative clause decision as defined in s.474(2) and (3) of the Migration Act 1958 (the Act). The operation of the privative clause provision was the subject of judicial explanation by the High Court in the case known as Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. Arising from that decision, in order for the applicant to succeed he must show that s.474 of the Act does not apply to a decision made by the RRT.
In order to do that the applicant must show that the RRT decision is affected by what is known as jurisdictional error.
In short summary, the applicant claimed a well–founded fear of persecution as a consequence of certain events that occurred whilst he was an apprentice goldsmith in Amritsar. He claimed that in about the middle of 1994 some men came to his employer’s shop and asked him to deliver a parcel. He claimed that he was given the parcel to take to an address in Amritsar. Subsequently he had to deliver parcels five or six times over the next few months. In December 1995 he was detained by the police. He learnt that his employer and many others had also been detained and that the parcels that he delivered contained documents which were related to the Khalistan Commando Force (the KCF).
He was held for four days and questioned and tortured. After he was released he left Amritsar as he was scared he would be taken again and he went to Behar State in February 1996 where he lived for four years until he left India in June 2000. He travelled from India and to East Timor. In East Timor he lived for over two years and was employed as a goldsmith. During this period he visited India on two occasions in 2000 and 2003 before coming to Australia.
The applicant claimed that the police had been coming to his home and asking where he was. He stated that this had happened over the four years whilst he was in Behar State.
It is significant that the RRT accepted that the applicant may have delivered the parcels as he claimed, that this may have related to the KCF and that the applicant had not been aware of this at the time.
It accepted that he was detained in December 1995 and questioned about his association with the KCF. It accepted that he was mistreated by the police and released, with assistance, after four days. The RRT also accepted that the applicant was suffering psychological reaction to his subjective assessment of his risk should he have to return to India.
The RRT did not accept, however, the police still believed him to be associated with the KCF and visited his home.
The RRT did not accept that the police would allow a person who they truly suspected to be involved with a militant organisation to walk free, even if money was paid. The RRT found that the applicant was released because the police were of the view that he was not associated with the KCF.
The RRT accepted that in February 1996 the applicant decided to leave Amritsar and to go Behar State to live because he was subjectively scared the police would take him for questioning.
The RRT found that the applicant lived in Behar State for four years, up until he left India, without experiencing any problems at all from either the police or anyone else. The RRT found that he was not of any continuing interest to the police after his arrest in December 1995.
The RRT accepted that he went back to Amritsar in both December 2000 and April 2003 and found that both times he did not come to the attention of the police and that he did not experience any problems.
The RRT concluded that the applicant would not be of interest to the police because of his very limited association with the KCF in 1994, over nine years ago.
The RRT further found that, in any event, it would be reasonable for the applicant to relocate to another part of India, such as Behar State where he lived for over four years before leaving India. He could do this even if he had a subjective fear of harm.
Having read the RRT’s decision which, I might add, is a detailed, comprehensive decision in my view, those findings of fact were open to the RRT on the evidence that was presented to it and in reaching the findings the RRT exhibited, in my view, probative logic.
Having made those findings of fact, the RRT concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations.
In my view, it is patent from the RRT’s summary of the applicant’s claims and evidence, and its reasons for decision, that the applicant’s claims were extensively dealt with by the RRT. It gave careful consideration to the claims and made findings which were open to it, as I have said, on the evidence. There is nothing to support the unparticularised assertions put forward by the applicant. There is nothing that has been said by the applicant today when invited to expand on his contentions that would alter that situation.
It is clear, in my view, that the applicant’s contentions are suggestive of an attempt to review the merits of the RRT’s decision. By that I mean, that it is apparent to me that the applicant, by his application for review, seeks of this court to come to different findings of fact.
Whether the RRT was wrong to conclude as it did, does not amount to an error which goes to jurisdiction. The making of findings of fact is a matter solely for the RRT.
In making its findings the RRT was not required to accept the applicant’s claims uncritically. It was not required to have rebutting evidence available to it before it could lawfully hold that a particular factual assertion was not made out. Even if there had been any illogicality in the RRT’s reasoning, which I do not accept is this case, that does not amount to a jurisdictional error.
Significantly, and this has been emphasised by the respondent, the RRT made a discrete finding, in any event, that it was open to the applicant to relocate to another part of India. The evidence presented to the RRT would indicate that the applicant was able to do that quite successfully without any harmful ramifications for a period of four years prior to leaving India. Whether relocation was a reasonable option for the applicant was a question of fact for the RRT.
In all of the circumstances, I cannot find jurisdictional error on the part of the RRT. Therefore, the RRT’s decision is afforded protection under s.474 of the Act and I have no alternative but to dismiss this application for review.
I formally make an order that the application for review filed on
1 February 2005 is dismissed.
I certify that the preceding twenty–six (26) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 10 November 2005
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