MZXNI v Minister for Immigration - [2007] FMCA 779

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 779

MIGRATION – Refugee Review Tribunal – findings of facts against applicant on question of harm – finding of no risk of harm – whether error as to social group a basis for judicial review in light of finding of no risk of harm.

Migration Act 1958, s.424A

Kankanamage v Minister for Immigration and Multicultural Affairs [2006] FCA 484
Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCR 719
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60
Wen v MIMA [2001] FCA 979

Applicant:

MZXNI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REGUGEE REVIEW TRIBUNAL

File number:

MLG 1481 of 2006

Judgment of:

Riethmuller FM

Hearing date:

27 March 2007

Date of last submission:

27 March 2007

Delivered at:

Melbourne

Delivered on:

27 March 2007

REPRESENTATION

The applicant appearing in person

Counsel for the Respondent:

Ms K.L. Walker

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

That the application be dismissed.
That the applicant pay the respondent's costs fixed at $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1481 of 2006

MZXNI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application with respect to a decision of the Refugee Review Tribunal. The applicant came to Australia from Lithuania on a business visa on 21 July 2000. He first arrived on 6 November on that business visa. He subsequently left and returned to Australia on two occasions, satisfying the requirements of the visa. In August 2001 he obtained a visitor's visa that expired on 11 November 2001.
On 8 November 2001 the applicant lodged an application for a protection visa. His claim was that he feared for his life because of threats from the mafia in Lithuania. He claimed he had been assaulted, that his son had been kidnapped, that his wife had been raped, that his son had later been released by the mafia. His claim was that he was being persecuted on the basis that he was a businessman in Lithuania.
The applicant's claim was rejected by a delegate of the Minister. On 7 May 2002 the applicant sought a review. On 29 January 2004 the review application was rejected by the Refugee Review Tribunal. The applicant sought judicial review of that decision in the Federal Magistrates Court which was refused by McInnis FM but subsequently allowed on appeal. The appeal was allowed by agreement on the basis that the tribunal had failed to comply with the requirements of section 424A.
The matter returned to the Refugee Review Tribunal and was heard by a different member on 30 August 2006. On 5 September 2006 the second tribunal sent a s.424A letter to the applicant inviting him to comment on information. He responded to that on 27 September 2006. A decision was subsequently made on 4 October 2006 refusing the applicant's application.
The relevant findings of the tribunal member are as follows:
‘The Tribunal is not satisfied that the applicant was subject to the harm he claims, that his wife was raped or that his son was kidnapped, because of the late addition to his claims that he did in fact report some of these incidents to the police. The Tribunal does not accept that, in the presentation of his claims with the help of a migration agent, such a crucial aspect would have been omitted, furthermore, the account of this reporting provided to the Tribunal at the hearing appeared to be a convenient response to the Tribunal’s question rather than a convincing account of what had happened and his attribution of the omission to mistakes by an interpreter in his response to the 424A letter by the Tribunal is also unconvincing. The applicant’s account of the behaviour of the so-called Mafia also gives rise to questions of credibility; one incident specifically highlights this and it concerns the account of his son’s kidnapping. He states that he had been a target for extortion since May 1998, yet when the Mafia apparently kidnapped his son in March 2000, they were content with an instalment being paid and released the child under these conditions. This does not sit well with the claims that they told him they would kill his son unless all the money he ‘owed’ was paid, nor does it sit well with the number ,of times the applicant had previously ‘defaulted’ on his payments. The Tribunal does not accept that this account reflects the truth.
In addition to the above and in light of the fact that the applicant left Lithuania four months after he obtained a visa to Australia, that he did not apply for a Protection Visa in Australia until one year after his arrival and then only after he had not only exhausted the validity of his first visa, but had also obtained another to replace it, the Tribunal finds that this conduct indicates that his primary concern was to remain in Australia. The arguments put to the Tribunal for the delay which cited his lack of English and ignorance of the system do not sit well with the fact that he was certainly aware of his obligations relating to his Business Visa and travelled outside Australia to fulfil these obligations, as well as his successful application for a tourist visa before he had apparently engaged any migration agent. This delay in applying for a Protection Visa is a legitimate matter to take into account when assessing the genuineness, or at least the depth of the applicant’s fear of persecution (see Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March, l998)).
In light of the above discussion the tribunal does not accept that the applicant was subject to extortion and that the harm claimed, to himself, his wife and his son, was actually inflicted.’ (emphasis added).
The tribunal then went on to consider whether or not the applicant's case would have shown the necessary nexus with the convention, dealing with questions of membership of a social group. As counsel for the Minister concedes, the tribunal appears to have erred in its discussion as to the definition of "social group". In that section of the decision the tribunal member ultimately, however, concluded:
‘Having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there is not a real chance that the applicant faces persecution, now or in the reasonably foreseeable future should he return to Lithuania, for any Convention reasons, thus his fear of persecution is not well-founded.’
The applicant in his original application set out his grounds as follows:
1. The decision is affected by a jurisdictional error.
2. Further grounds and particulars to be provided upon provision of legal advice which is pending.
I made procedural orders in the matter for an amended application and the filing of summaries of argument. An amended application was not formally filed, although further grounds of application were filed. Whilst they do not appear to have been placed upon the court file, I allowed the applicant to tender a document setting out those grounds at this hearing. That document was in the following terms:
‘I, the applicant in these proceedings identify the following grounds of my application to the Court:
1. I fulfil the criteria for definition of refugee in accordance with the Article IA(20) of the Refugee Convention.
2. I am currently outside Lithuania, my country of nationality.
3. I was subjected to persecution which involved threat to my and my family life and liberty, extortion demands, harassment and ill-treatment from the authorities and significant economic hardship by affecting my capacity to earn a livelihood and support myself and my family.
4. The persecution I was subjected to was officially tolerated and uncontrollable by the authorities of my country of nationality. The government was unable to protect me and my family from the persecution.
5. The people who persecuted me and my family were motivated by greed and desire to extort money. They perceived me as being rich due to my involvement in business.
6. The persecution I was subjected to was for the reason of me being a member of social group being “Businessmen and entrepreneurs in post-Soviet Lithuania”. I am one of many who experienced similar treatment from mafia and authorities. I was a target of the extortion for the reason of being a member of this group.
7. My fear of persecution is a “well founded” fear based on events which occurred to me and my family in past. There is a real chance that should I return to Lithuania I will be subjected to the same treatment and I may not have an opportunity to escape.
8. Due to my fear of persecution l am unwilling to avail myself of the protection of Lithuanian authorities.
9. I believe that I am a person to whom Australia has protection obligations based on the facts and information provided to the Tribunal. The Tribunal should have considered the information from independent sources such as media and internet and should have found I do face a real chance of persecution now as well as in the foreseeable future should I return to Lithuania.’
It appears to me that paragraphs 1 to 5 and 7 to 8 are effectively a complaint with respect to fact-finding and not issues that are within the ambit of judicial review. Paragraph 6 makes a claim of error on the issue of the definition of a social group.
Paragraph 9 appears to identify that the tribunal failed to have regard to relevant material. At the hearing, further detail of this claim was sought from the applicant who was not able to identify any material that was sent to the tribunal or provided to it that it did not have regard to, as referred to in paragraph 9.
It seems that this paragraph was a general complaint that the tribunal ought to have sought out further evidence (from media and Internet sources) that may have been relevant to the case. It is not a requirement of the tribunal that they seek out further material in order to determine a case. In this respect I find that this ground does not provide an appropriate ground for judicial review.
The applicant did state that he had a letter from his wife corroborating his version of events, however this was not provided to the tribunal. It is not open to me to review the fact-finding of the tribunal today on the basis of further factual material that the applicant may be able to provide as that is also outside the scope of judicial review.
The issue that remains is one quite properly identified by counsel for the minister, which arises from comments made by Collier J in Kankanamage v Minister for Immigration and Multicultural Affairs [2006] FCA 484 where her Honour, when dealing with a Migration Review Tribunal matter, made the following comments:
‘26 This submission gave rise to an interesting threshold question – namely if the Tribunal had not specifically directed their minds towards whether the nominator was suffering from a prolonged illness within the meaning of the reg 1.03, did it follow that the decision of the Tribunal in relation to the visa application was affected by jurisdictional error.
27 The respondents submitted that the decision would not have been so affected. The respondents submitted that, in order for the appellant to succeed, he must show that the findings of the Tribunal on each individual requirement of the definition of ‘special need relative’ were affected by jurisdictional error. Conversely, if it could be shown that any of the findings of the Tribunal stood as a finding of fact unaffected by any relevant material error, it would be sufficient to support the Tribunal’s decision even if another one of its findings on a different limb of the definition might have been affected by error. So, for instance, if the Tribunal erred in relation to whether the nominator suffered a prolonged illness, it was irrelevant if the Tribunal was correct in relation to other findings which would mean that the applicant was not a special need relative, for example that the applicant had not provided substantial and continuing assistance, or that assistance to the nominator could be obtained from other sources (TS pp 27-29).
28 I do not accept this submission of the respondents. In reaching a decision under the Act as to whether the applicant was a special need relative, the Tribunal was required to apply the definition under the Act, and the criteria in that definition. If the Tribunal did not apply its mind properly to the definition, ignored relevant material, identified a wrong issue or asked itself a wrong question, it follows that the Tribunal may have made an error in its understanding of the applicable law, or failed to apply the law correctly to the facts it found (note comments by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at 347, 348, 352). Accordingly, if the Tribunal did not direct its mind to the question whether the nominator suffered from a ‘death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally’ which resulted in ‘permanent or long-term need for assistance’, it is possible that the Tribunal would have misapplied the law to the facts before it in this case.’
At first blush it appears to be a statement to the effect that an error with respect to any of the elements of a decision may be sufficient to found a judicial review application requiring the matter to be returned to the tribunal to be heard again. Counsel for the Minister relies upon comments in a number of other cases for the proposition that that is not necessarily so: for example the comments of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 in paragraph 82 where McHugh, Gummow and Hayne JJ said:
‘It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia[50], if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive[51]. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law[52].’
Similarly, in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 the High Court said:
’43. In our opinion the Federal Magistrate proceeded upon a misconception. The Tribunal did not[26] make findings of fact favourable to the appellant calling for the application of s 91R(2)(a) of the Act. This appears clearly from the Tribunal's several findings adverse to the appellant with respect to his political activities which in turn were to provide the foundation for his assertions that it was these that provoked the dangerous threats to which he was subjected. That this is so, also appears from the language, carefully chosen by the Tribunal, with respect to the possible application of s.91R(2)(a) of the Act, if the appellant's factual claims were true. The key, and effectively decisive, factual finding, was that it was "not plausible that a person who had been actively involved in the way described by the [appellant] ... could fail to recall ... and ... not know" various relevant political matters about which he had been asked.
44. Thereafter, with one possible exception only, the Tribunal used only provisional language - the language of assumption or hypothesis, not belief - about the facts to which s 91R(2)(a) might be applicable had the appellant's assertions about them been believed. This follows from the repeated references to the appellant's "claims". It follows from the use of the words, "I am prepared to accept that the [appellant] might have received intimidating and threatening telephone calls" and "I am also prepared to accept that he was assaulted in December 2000/January 2001 and that this may have been done to him by UNP thugs" (emphasis added). It follows from the Tribunal's later significant use of some contrasting expressions turning on the notions of "finding" and "view": "I found the [appellant's] evidence [about the incident involving a collision with a van and the egg-throwing] unconvincing. Even if it occurred as the [appellant] claimed ... it ... is not in my view harm ... of a severity so as to constitute persecution" (emphasis added). It follows from the fact that this statement was succeeded by a statement in the language of a finding: "I am not satisfied that the [appellant] was in hiding as he claimed". And it follows from the Tribunal's next statement:
"Had there been a serious intent to harm him [during the van incident, he would have been harmed] ... Nor am I satisfied, against the background of all of the [appellant's] evidence, that it was his political involvement which led him to lose his job as a musician ... I found very unconvincing the [appellant's] evidence about why he did not report the incidents to the police". (emphasis added)
45. The only possible exception to the consistently provisional language is to be found in a later paragraph of the Tribunal's reasoning which begins with this sentence:
"I have concluded that the chance of the [appellant] coming to serious harm upon return to Sri Lanka because of his past involvement - which I have found was limited to voting for the PA, attending rallies during election campaigns, providing musical entertainment at some gatherings and undertaking practical support tasks during election campaigns - is remote." (emphasis added)
46. But the sentence following it[27], and the other findings and the manner of expression of the Tribunal to which we have earlier referred, leave little doubt that the evidence before the Tribunal regarding the claims and evidence of the appellant, as evaluated by the Tribunal, could provide no factual foundation for a claim of persecution for the Convention reason relied on, the holding of a political opinion or membership of a political group. In those circumstances the decision of the Tribunal was not open to challenge on the basis of jurisdictional or like error. Occasion for the application and therefore consideration of the meaning of s.91R(2)(a) of the Act by the Federal Magistrate did not therefore strictly arise.’

Counsel also referred me to the comments of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCR 719 where his Honour said:
‘In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its. findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: W S Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.’
More recently, in Wen v Minister for Immigration and Multicultural Affairs [2001] FCA 979, Sundberg J said:
‘10 The second ground on which I was urged to refuse relief was that it would be futile to remit the matter to the delegate because he had made findings of fact that meant that par (b)(ii) was not satisfied. The delegate's conclusion was expressed as follows:
"From the information you provided at interview I am not satisfied that you intend to maintain a direct and continuous involvement in the management of the proposed business or be in a position of control that allows you to make decisions that affect the overall direction and performance of the business."
He thus finds facts the result of which is that the criteria in par (b)(ii) and (iii) are not satisfied. The applicant has not convinced me that there is any error of law which would justify me setting aside this finding. As I have said, the word "control" is not used in the sense of unilateral or absolute control, but in the sense of control that is sufficient to make the decisions in question - "allows you to make decisions ...". At the second interview the applicant was asked about her position in the partnership business. She said she thought she would take care of the financial books and contact with the Chinese side of the business because she is unable to speak English. She added "So I just can do this". She was then asked who would run the business on a day to day basis, and she said Mr Whitehead would, because he was familiar with the Australian hardware market. At the earlier interview Mr Whitehead was asked, in the applicant's presence, whether he could foresee the applicant taking over the role of General Manager in the future. He said he would remain the General Manager. It was open to the delegate on that material to find as he did. It would thus be futile to remit the matter to the delegate, because on the findings made, the same result will be inevitable even if the delegate correctly construes and applies par (a)(i). See, for example, Rahim v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 223 at 237-238.’
In this case the tribunal's decision makes it clear that the tribunal did not accept the claims as put forward by the applicant with respect to the events that he said were the harm that he had been subjected to. His fear of harm for the future could be based only upon those events. The tribunal quite clearly and unambiguously did not accept that the applicant was subject to extortion nor the harm that he alleged with respect to himself, his wife or his son.
The finding of the tribunal that there is no real chance that he would face persecution in the future is supported by clear factual findings with respect to the past. Whether or not the tribunal had concluded that any alleged persecution was for a convention reason would not have altered the ultimate outcome in the decision whereby the tribunal rejected the factual foundation of the claim of harm.
In these circumstances it appears to me that the applicant must have failed before the tribunal regardless of any potential error by the tribunal with respect to the question of a convention nexus. In the circumstances it is not a case where a jurisdictional error has been made out.
I therefore dismiss the current application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: J. McLean

Date: