MZXAP v Minister for Immigration and Anor (No.2)
[2006] FMCA 923
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXAP v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 923 |
|
| Federal Magistrates Court Rules 2001, rr.16.05, 13.03A(c) |
| MZXAP v Minister for Immigration & Anor (No 1) FMCA 774 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZXAP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 714 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr. S. Hay |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application filed 3 March 2006 be refused.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 714 of 2005
| MZXAP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application to set aside an Order made by the Court on 14 February 2006 pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”). That Rule provides as follows:
“(1)The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d)the order is an injection or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
3.This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.”
The Orders sought to be set aside, which were made on 14 February 2006, included an Order that the substantive Application as amended be dismissed pursuant to r.13.03A(c) of the Rules. That Rule provides for dismissal of an Application in the event that a party to the proceeding is absent from the hearing. On 14 February 2006 the Court also made an Order that the Applicant should pay the First Respondent's costs fixed in the sum of $5,800.00.
In dealing with the Application to set aside the Order made on 14 February 2006, the Court is required to consider whether reasonable grounds are provided by the Applicant to set aside the Order, and if satisfied that reasonable grounds exist, then the Court is then required to further consider the issue of whether the substantive Application before this Court is an arguable case.
The Court has already found that the Applicant has provided in Affidavit evidence reasonable grounds explaining his non-appearance before the Court on 14 February 2006, and made other Orders in relation to costs (see MZXAP v Minister for Immigration & Anor (No 1) [2006] FMCA 774).
The issue now remaining fore the Court is whether the Applicant has an arguable case in relation to the substantive Application. The substantive Application is one where the Applicant seeks Judicial Review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 April 2005. In its decision, the Tribunal affirmed the decision of a delegate of the First Respondent not to grant to the Applicant a Protection Visa.
The Applicant claims to be a citizen of Romania who arrived in Australia on 26 August 2004. On 5 October 2004 he lodged an Application for a Protection Visa with the First Respondent's Department. The Applicant claimed he would face persecution at the hands of the Romanian authorities and the public in general, if he returned to Romania because his parents had worked for the former Special Security Forces in Romania; namely, the Securitate and its predecessor organisation, the SRI.
A delegate of the First Respondent, in a decision dated 16 November 2004 refused to grant the Applicant a Protection Visa. On 8 December 2004 the Applicant lodged an Application for Review of the delegate's decision with the Tribunal. The Applicant attended the Tribunal hearing on 4 March 2005 and gave oral evidence in support of his claims. For reasons which will become apparent, it is also noteworthy that in the Application for a Protection Visa, when asked to provide details of the country of residence of his family, the Applicant asserted in relation to his mother, "Romania" (Court Book page 18).
It is further noted and is relevant that the Tribunal, after the hearing, forwarded a letter dated 7 March 2005 seeking further comments from the Applicant in relation to issues which the Tribunal regarded as relevant. For present purposes, it is sufficient to note that in that document, amongst other things, the following:
“At the Tribunal hearing of 4 March 2005, however, you claimed for the first time that your parents had been involved in the disappearance of files and outlined numerous instances in which you claimed that you and your parents had been targeted as a result, including an assault on your father in December 1995.
· There also appears to be an inconsistency between the information you gave about your mother in your protection visa application and information you gave about her at the Tribunal hearing. In your protection visa application lodged on 5 October 2004, when asked to provide details of other family members, you indicated that your mother's country of residence was Romania. However, at the Tribunal hearing, you stated that your mother had left the country in March 2004 because of problems she was suffering.”
In the same letter dated 7 March 2005 from the Tribunal to the Applicant, an error was made in relation to the suggestion that the Applicant's mother had left Romania "in March 2000". Clearly, that was meant to refer to "March 2004." In any event, the letter resulted in a detailed Submission from the Applicant to the Tribunal dated 11 April 2004 (Court Book pages 94-96). In that submission the Applicant in some detail refers to the Application for a Protection Visa, and in relation to the specific alleged inconsistency between the reference in the Application to his mother residing in Romania and his evidence at the hearing that she had left Romania in March 2004. The Applicant relevantly states:-
“At the above mentioned hearing I stated clearly that my mother left Romania in March 2004, that being prior to my own departure to Australia. Now, strictly speaking, I am not well aware of the position my parents held with the Romanian Information Service, but it is clear for me that all the problems I have encountered were generated by their own problems with the same Institution; therefore, I had to suspend any contact with my own parents, and saw this as the only chance to stay outside any possible impediments to my own future.
However, in the letter you sent me, I can see that your understanding is that my mother had left Romania before the day I lodged the initial Application for Protection Visa (October 5, 2004). With regard to this I want to mention the following:
· Although I have some knowledge of English language, however, I do not have full understanding of the meaning of the word ‘resident’;
· The juridical sense of the word ‘resident’ is also not very clear to me;
· The fact that I did not provide the detail about my mother having left Romania before the date of my Application can be justified by the fears mentioned above;
· My perception is that, although my mother left Romania, she was still a citizen and a resident of that country;
I would like to add that in your letter you mentioned that my mother had left Romania in March 2004 as a result of the problems she was suffering and that she also left Romania in March 2000, which is not accurate; my statement was that my mother really left Romania in 2004 due to problems she had suffered. This inconsistency might have been conducive to your interpretation of my case in the way it has been conducted, and this is indeed regrettable.”
The Application
Before this Court the Applicant filed an Application on 14 June 2005 seeking review of the Tribunal's decision, but in that Application had failed to set out the grounds relied upon. An Amended Application was then filed on 19 October 2005, supported by the Applicant's Contentions of Fact and Law filed the same day.
The Amended Application claimed jurisdictional error, and although not providing detailed particulars, it was claimed that the Tribunal had fallen into jurisdictional error by taking into account irrelevant considerations or failing to take into account relevant considerations. Reference was made to the Tribunal examining the Applicant's claims of persecution on an individual basis rather than in a cumulative sense.
Further, it was claimed, an error occurred when the Tribunal took into account irrelevant considerations, in that it wrongly concluded that the Applicant's claims of persecution were not believable simply on the basis that he had failed to specify or particularise them at the time of lodging his original Protection Visa Application. The Applicant noted that the Tribunal had found that the Applicant only feared discrimination as a result of being the son of Securitate Agents and that this did not amount to persecution and the Tribunal had erred in law in that the experiences related by the Applicant did amount to persecution.
It will be apparent from the brief reference to the grounds set out in the Amended Application that those grounds appeared to be inadequate. The matter came before the Court on 7 April 2004 and on that occasion the Applicant was granted the opportunity of filing and serving an Affidavit in support of his Application to set aside the Orders made on 14 February 2006 annexing any draft Amended Application and/or Contentions of Fact and Law in this matter.
Pursuant to that Order, the Applicant, on or about 26 April 2006, filed an Affidavit which annexed a document entitled "Draft Further Amended Application under Migration Act 1958." In that document, which I am prepared to deem as a further Amended Application, reference was made to the earlier Amended Application, the grounds of which were set out above and the Applicant then further stated as an additional ground the following:
“2.Further, the Tribunal erred in law in finding that the applicant was not a person to whom Australia owes protection obligations under the Refugees Convention, in that it made its decision on the basis of abstract and generalised country information without having due regard to the applicant's particular circumstances. In particular, the applicant alleges that the Tribunal made its decision under dictation and/or in accordance with official directives to refuse a case such as his own application to be recognised as a refugee in relation to Romania.”
The additional grounds sought to be relied upon, as set out above, whilst referring to what might be described as "generalised country information" without having due regard to the "Applicant's particular circumstances", went further to allege what might be described as lack of good faith and/or apprehended bias.
However, it was clear during the hearing of this Application that no further Particulars were given in support of any allegation of a lack of good faith or apprehended bias. Given that that ground is a significant ground, it is incumbent upon Applicants and this particular Applicant to provide appropriate Particulars according to law, and he has failed to do so. It is not appropriate to then further consider that allegation, albeit that it formed part of the further grounds in the document referred to above.
The Tribunal's Decision
In its decision the Tribunal did not accept the Applicant's evidence and rejected his claim. Under the heading "Findings and Reasons" (Court Book pages 126-134), the Tribunal undertook a detailed analysis in its reasoning of the Applicant's evidence and claims. Specifically, it is useful to refer by way of example to the following findings by the Tribunal at Court Book page 127 where it states:
“The Tribunal has also considered the applicant's claim that he faced difficulties because his parents were suspected of leaking sensitive files while employed at the SRI. As the Tribunal put to the applicant at the Tribunal hearing and in its letter of 7 March 2005, the applicant's protection visa application of 5 October 2004 made no mention of his claim that his parents were suspected of involvement in the disappearance of sensitive files from the intelligence service or SRI. The application did not relate his claim to such a matter in any way. The applicant did not refer to such a matter as a reason why he or his parents had suffered harm in the past or would be at risk in the future. He did not refer to any specific incidents of harm suffered by his parents. He indicated that his parents had worked for the intelligence services and claimed the government was using members of the intelligence services and their descendants as scapegoats. His claims appear to revolve around the fact that his parents had simply worked for the intelligence services and that members of the intelligence service generally were being scapegoated.”
The Tribunal then in its decision went on to consider explanations provided by the Applicant for his initial failure to refer to the matters relating to leaked files and then concludes as follows:
“The Tribunal does not accept that the applicant was prevented by language difficulties from at least flagging this matter in his written claims if it had really caused him problems as claimed.
Nor does the Tribunal accept that the applicant was reluctant to refer to this matter because of suspicion of authority or distrust of the Romanian community or the person helping him complete the form.”
A further example of an adverse finding which may be described as an adverse credibility finding is found in the Court Book at page 133 where the Tribunal states:
“Even if his parents were suspected of leaking files, the Tribunal does not accept that this ever caused the applicant to be targeted or to suffer harm as he claimed. If this had been the case, the Tribunal would have expected the applicant to have mentioned this matter in some form in his initial protection visa application. Further, the applicant's attempts to relate such a matter to a range of problems he claims to have suffered was entirely unconvincing for reasons outlined above.”
The reasons referred to by the Tribunal as being "outlined above" include a detailed reference to various claims by the Applicant in relation to the consequences which he alleged had flowed from the conduct of his parents in leaking the files. In its decision, the Tribunal further considered country information and in doing so, ultimately stated the following at Court Book page 134:
“As the Tribunal put to the applicant, Romania is a multi-party democracy where there are no reports of such things as politically motivated disappearances, politically motivated killings or political prisoners. Independent information indicates that the government generally respects the human rights of its citizens and the Tribunal does not consider that the material provided by the applicant compels an alternative conclusion. In these circumstances, the Tribunal finds that there is no reason why the applicant would be prevented from freely expressing his political opinions if he were to return to Romania. It finds to be remote the chance that the applicant would be seriously harmed for the expression of his political opinion.”
Specifically, the Tribunal during the course of its reasoning had rejected suggestions that the Applicant had been harassed in the running of his business by authorities and other allegations which were made as a result of his parents’ conduct. It noted that the Applicant's evidence indicated that by 2000, his father had not been working for the SRI for five years and his mother for four years. The Tribunal then proceeded to make a significant adverse finding that it did not accept as plausible, the Applicant's claims that authorities or others suddenly sought to do him harm for this reason from August 2000 and that they then targeted him in the ways he has described (Court Book page 130).
It is clear from those extracts of the Tribunal's decision that it had significant reservations about the Applicant's claims and essentially made adverse credibility findings on the substantive issues. It did so without necessarily relying upon the omission from the Application form of reference to the Applicant's mother leaving Romania in March 2004, but certainly relied upon the absence of details of the claims put to the Tribunal which were not raised in the Application.
The Applicant's Submissions
The Applicant's Submissions in general seem to relate more to the findings of fact which the Applicant does not regard as acceptable. The Applicant, who is self-represented, though assisted by an interpreter, was required to make his own Submissions in relation to the question of whether he had an arguable case. He had been assisted by a Legal Aid solicitor in relation to the question of whether he had a reasonable excuse for not appearing at the Court on 14 February 2006 and also in relation to the issue of costs. Unfortunately, that assistance did not extend to assisting the Applicant in making Submissions concerning whether he had an arguable case.
However, the Applicant made a number of Submissions which to a large extent seemed to invite the Court to reconsider the facts of his Application and sought to attack what might be described as the "logic" of the Tribunal's decision. He referred to the correspondence from the Tribunal dated 7 March 2005 and his response, indicating that there was a clear error in reference by the Tribunal to the year "2000" when it should have referred to "2004". He failed to understand the meaning of the term "country of residence" in the Application. In that form the Applicant claims he took that term to mean simply the country of birth.
During the course of his Submissions, the Applicant asked the Court whether it would give him "another chance to clarify things which were not apparent before the Tribunal". He further stated during the course of Submissions that he wanted a chance to "explain one more time his point of view". He did not suggest that the Tribunal had failed to consider the claim but rather that he wanted to explain in further detail the basis of the claim. It is clear that the Applicant, who is self‑represented, was not able to articulate in appropriate terms the nature of the jurisdictional error relied upon in this Application. He did not advance any further Submissions in relation to what I have described earlier as the potential grounds relying on bad faith and/or apprehended bias.
The Respondent's Submissions
The First Respondent submitted that there is no jurisdictional error disclosed in the Applicant's material. It was submitted that in this instance the Tribunal had considered the claims cumulatively, contrary to the assertion in the Applicant's Application, and did so by referring specifically in its conclusion to the phrase, "having considered the evidence as a whole" and then proceeding to make a finding that it was not satisfied the Applicant is a person to whom Australia has protection obligations.
It was further submitted that the mere claim by the Applicant that the Tribunal wrongly rejected his evidence does not of itself provide any basis for Judicial Review, as the acceptance or rejection of evidence is a matter for the Tribunal. The Tribunal is likewise entitled, it was submitted, to consider the time at which the Applicant first raises a claim when assessing credibility (see SAAK v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 663).
Reasoning
In my view, the Tribunal in this instance has properly considered and assessed the claim before it. It has done so in a manner free of jurisdictional error. I do not see in its reasoning any failure to take into account relevant considerations and/or taking into account irrelevant considerations. It has properly embarked upon its fact-finding mission in assessing the credibility of the Applicant and his claims. Part of that process legitimately involves a consideration of the time at which the Applicant first raised the detailed claims relied upon at the hearing. It then went further to analyse each claim in some detail before finding in general terms that the claims were implausible and/or before rejecting the Applicant's claims and findings which clearly raised fundamental adverse credibility issues.
As indicated earlier, I can see no basis upon which this Court could otherwise conclude that there has been a lack of good faith and/or apprehended bias. Further, I am satisfied and accept, as submitted by the First Respondent during oral submissions, that the Tribunal was entitled to rely upon country information in this Application and did so appropriately. I do not see any error in the way in which the Tribunal used the country information in reaching its conclusions, part of which are set out earlier in this judgment. In some respects, it was probably unnecessary for the Tribunal to further consider the circumstances in Romania and country information having rejected the Applicant's claims and the basis upon which he asserted an entitlement to a Protection Visa.
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 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).
Applying the relevant authorities to this Application, it is clear to me that the Application is one which would properly be found to be an Application where there is no arguable case. Having found there is no arguable case, it is appropriate for the Court to then refuse the Application to set aside the decision and Orders of the Court dated 14 February 2006, save for the variation of that Order made when dealing with part of this Application insofar as it related to costs.
If the Court had been minded to permit the Application to be reinstated by setting aside the Order made on 14 February 2006, then it is clear for the reasons given that in any event, as a final decision the Court would otherwise dismiss the substantive Application. However, given the nature of the Application before the Court, it is appropriate that Orders be made as follows:-
(1) The Application filed 6 March 2006 be refused.
(2) The Applicant shall pay the First Respondent’s costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate:
Date: 30 June 2006
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