MZXNM v Minister for Immigration
[2007] FMCA 1530
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1530 |
| MIGRATION – Application for judicial review – jurisdictional error not found – application dismissed with costs. |
| Migration Act 1958 (Cth), s.422B |
| Applicant: | MZXNM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1497 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 22 August 2007 |
| Date of last submission: | 22 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr S.P. Donaghue |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent's costs, fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1497 of 2006
| MZXNM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). Two grounds are contained in the Applicant's amended application filed on 24 April 2007. The second ground identified which is concerned with procedural fairness was conceded by counsel for the Applicant to be disposed of by the operation of s.422B of the Migration Act 1958 (Cth) (“the Act”).
Accordingly, counsel merely made a formal submission in respect of ground 2 in case the matter goes further by way of appeal. Counsel for the First Respondent relied upon his written submissions in this regard.
Since ground 2 has to all effects and purposes been abandoned, it is not necessary for me to do more than observe that s.422B of the Act does indeed dispose of ground 2 for the reasons advanced by the First Respondent.
Ground 1 of the application arises out of the penultimate paragraph of the Tribunal's decisions at CB 131.
It should be noted that the Applicant conceded that the case that he put before the Tribunal was one of a fear of persecution by reason of political opinion. It was also conceded that that aspect of his application was decided against him for reasons that were unimpeachable and not the subject of any attack in this Court.
It should be noted that the Applicant in fact expressly disavowed any fear of harm on the basis of his being a Muslim, CB 125.
The error that is said to arise is because having made that unimpeachable finding, the Tribunal went on to say in the paragraph complained of:
“The Tribunal finds, based on the country information, that the Applicant does not face a real chance of persecution due to his ethnicity of religion (ie being a Muslim and a Tamil-speaking Muslim). The country information indicates that Muslims are mistreated by the LTTE, but that there are only isolated incidents of communal violence between Sinhalese and Muslims.”
The reference to country information is, it seems clear, a reference to country information of which none was created any later than October 2005.
The criticism made by the Applicant is that the Tribunal, having made the finding in the impugned paragraph, fell into error because having addressed that issue, (which it was not in fact necessary for it to do to dispose of the claims actually advanced before it), the Tribunal failed to make further inquiry. This should have occurred because the material on which it based its decision clearly was put together and created before the outbreak of civil war said to have occurred in 2006.
Accordingly, according to the Applicant, the Tribunal fell into jurisdictional error by not taking into account relevant information, namely the fact of which judicial knowledge should be taken, that there was a civil war outbreak in 2006.
Counsel for the First Respondent drew my attention to the fact that the Applicant applied for his protection visa in March 2006, made statements to the Tribunal in April 2006 and August 2006, attended the hearing in August 2006 before the Tribunal and made a further statement in September 2006 thereafter. In none of that material did the Applicant raise the question of the civil war or express any subjective fear arising out of any of the events that had happened in 2006 up to that time. There was therefore no evidence that was capable of persuading the Tribunal that the Applicant faced a real chance of persecution, which requires inter alia that the Applicant have a subjective fear of persecution.
That point effectively disposes of this ground.
Further, I think that the First Respondent is correct to say that the authorities (to which both sides referred extensively before me) clearly show that the way in which the Tribunal deals with the country information is a matter for it and that the Tribunal is not obliged to make further inquiries of the sort to which the Applicant referred. The Tribunal did not fall into jurisdictional error in relying upon the most recent country information then available to it and further, in dealing with the matter on the express basis advanced by the Applicant himself.
There is a real difficulty in the fundamental proposition advanced by the Applicant. I am prepared to accept that a specialist Tribunal should be taken to have some considerable detail of understanding about the circumstances in countries from which large numbers of applications come to it. It is, however, another step altogether to say that even the outbreak of civil war necessarily would have given rise to country information that would have supported the Applicant's case. It is by no means certain. One cannot in my view take as judicial knowledge the proposition that the outbreak of civil war, (assuming it was in 2006 which I am prepared to accept), necessarily meant that Tamil Muslims, such as the Applicant, faced some new, not previously existing fear of persecution.
In these circumstances, the application must be dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 13 September 2007
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