MZXRG v Minister for Immigration
[2007] FMCA 2080
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXRG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2080 |
| MIGRATION – Reliance on latest independent country information – failure to deal explicitly with earlier independent country information – does not establish jurisdictional error – independent reason for affirming decision of the delegate. |
| Migration Act 1958 (Cth), s.474 |
| Attorney General for the State of NSW v Quin (1990) 170 CLR 1 VBAP v Minister for Immigration and Multicultural Affairs [2005] FCA 965 |
| Applicant: | MZXRG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 902 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 12 December 2007 |
| Date of last submission: | 12 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Moore |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 3 July 2007 is dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 902 of 2007
| MZXRG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 May 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 7 July 1997, the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution on the basis of imputed political opinion, religion and professional alliance.
The history of proceedings in this matter is as follows. The application for a visa was refused by a delegate of the first respondent on
10 September 1997(CB 62) which was affirmed by the Tribunal on review on12 May 2000 (CB 84). On 11 August 2004, the Federal Court set aside the decision of the Tribunal and remitted it to be determined according to law (CB 105). The Tribunal affirmed the decision of the delegate on 27 October 2004 (CB 127).
On 12 May 2006 an application to this Court for judicial review of the Tribunal’s decision was dismissed (CB 149).
On 23 November 2006 the Federal Court set aside the orders of this Court made on 12 May 2006, and the decision of the Tribunal on
27 October 2004 and remitted the matter to the Tribunal to be determined according to law (CB 162).
By decision signed on 21 May 2007 the Tribunal affirmed the decision of the delegate (CB 277).
The matter is now before this Court pursuant to an application for judicial review filed on 3 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal erred in relying on the latest independent country information before it.
·Whether the failure to deal explicitly with earlier independent country information amounted to jurisdictional error.
The application
In his application, the applicant set out 5 grounds. At the hearing, all grounds other than ground 4 were abandoned. A further ground was added. The extant grounds are as follows:
“4. There was no evidence or other material to justify the making of the decision.
5. The Tribunal failed to consider the relevant material.”
Findings of the Court in relation to the grounds in the application
Ground 1 was withdrawn at the hearing.
Ground 2 was withdrawn at the hearing.
Ground 3 was withdrawn at the hearing.
Ground 4 complains that there was no evidence or material to justify the decision. The Tribunal set out its reasons and referred to the evidence. This ground seeks review of the merits that is not available. The findings of fact by the Tribunal were properly open on the material before it.
The Court refers to the following passage in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
The original ground 5 was abandoned at the hearing. A new ground was added which shall be numbered 5 that “The Tribunal failed to consider relevant material.” It was submitted for the applicant that this ground is an alternative way of pleading ground 4.
The applicant complains that “the Tribunal did not accept he was appointed the chief organiser or that he was threatened by Buddhist monks or that Buddhist monks went to his house to tell him he would go to jail.” This ground seeks a review of the merits that is not available.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers also to AG v Quin ante.
The Applicant complains also about findings of fact by the Tribunal as to a newspaper article submitted by the applicant, that “any damage done recently has been to church property rather than individual Christians…There is no reasons why the applicant could not carry out his religious activities in the same way he has done in the past in Sri Lanka.” The Applicant seeks to review those findings of fact:
a review of the merits is not available.
It is alleged for the applicant that country information contains evidence that individual Christians were targeted and that there were reasons why a Christian such as this applicant carrying on his religious activities might be harmed. The Tribunal considered the latest country information before it that “There has always been a Christian population in Sri Lanka and generally there is an amicable relation between persons of different faiths” (CB 324.6).
In reaching its conclusions the Tribunal relied on “Independent Country Information (UK Home Office Reports, 31 October 2006.” (CB 324.9)) that Sri Lanka would be willing and able to offer the applicant effective protection. Therefore, as the Tribunal stated
(CB 325.3), “In the remote event that Buddhist monks would attempt to harm him on his return to Sri Lanka” he would be offered effective protection. If there was a mistake of fact about religious and political persecution (which is an enquiry the Court cannot embark on), it would be subsumed by the finding that the applicant would be offered effective protection. The Tribunal relied on that finding to conclude that the applicant could continue to support the UNP and follow his Christian belief without facing a real chance of persecution now, or in the foreseeable future (CB 325.6). That finding of fact was properly open to the Tribunal on the material before it and is not subject to review.
It is complained that the Tribunal did not consider certain material in US State Department Country Reports of 8 March 2006 (CB 314–315). The Tribunal had later country information before it (UK Home Office Reports, 31 October 2006 (CB324.9)) that it chose to accept. It is a matter for the Tribunal which evidence it accepts, or rejects, Lee ante. The Tribunal therefore had evidence to support it conclusions.
An error of law has not been established.
The decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 is relied on by the applicant, where the Full Court held that the Tribunal there had not undertaken an evaluation of the country information, and therefore had erred. That decision is relied on to support a submission that the failure of the Tribunal to deal explicitly with independent country information that supported the position of the applicant, amounts to jurisdictional error. The crucial difference between that case and the present is that here the Tribunal relied on the latest independent country information before it in reaching its conclusions: in VOAO the Tribunal did not deal with the latest country information before it. The decision in VOAO has no impact here.
As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
The Tribunal set out extensive detail of country information it gathered
(CB 294.10–299.2 and 303.2–319.9). It was for it to decide which information it relied on. It also referred to information tendered by the applicant (CB 284.9). It is a matter for the Tribunal which evidence it accepts or rejects, Lee ante. The failure to refer to each item of country information in its reasons, does not mean that the Tribunal failed to consider it. As decided in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 per Justice Lindrgen at [58]:
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”
The applicant then complains about other findings of fact (supplementary contentions of fact and law paragraph 18).
Those findings were properly open to the Tribunal and are not subject to review.
The main issue in this case is whether there was probative evidence to support the finding by the Tribunal that the applicant can return to Sri Lanka, as it would be willing and able to offer him effective protection (CB 325.3). There was such probative evidence. The Tribunal relied on the latest independent country information before it on those issues, (in particular UK Home Office Reports, 31 October 2006 and the US Information Freedom Reports released on 18 November 2005).
The Tribunal had information that there were “generally amicable relations among persons of different faiths” (CB 316.8) and that “In general, the members of various faiths tend to be tolerant of each others religious beliefs” (CB 316.5). The Tribunal considered the earlier material as detailed in its decision, but relied on the latest material. The evidence it accepted was a matter for it, Lee ante.
There was therefore an independent reason for dismissing the application even if there was information, in earlier country information that could have been supportive of the applicant’s claims of religious and political persecution. First, the Tribunal found that it did not consider that the applicant would face any chance of persecution for his political opinion in Sri Lanka (CB 323.9 and 324.2) and that he does not face a real chance of persecution for his religion (CB 324.8). Secondly, it found as an independent reason for affirming the decision of the delegate that, should it be wrong, Sri Lanka was willing and able to offer him effective protection (CB 325.5).Where there is an independent basis for the decision of the Tribunal, the court is not required to remit the matter because of an error made elsewhere VBAP v Minister for Immigration and Multicultural Affairs [2005] FCA 965 at [83]. The Court finds no error of law.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 20 December 2007
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