VMAC v Minister for Immigration
[2003] FMCA 509
•14 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VMAC v MINISTER FOR IMMIGRATION | [2003] FMCA 509 |
| MIGRATION – Review of Refugee Tribunal decision – refusal of protection visa – Applicant for Nigeria – claim to fear persecution from Muslims in Nigeria because he is a Christian – jurisdictional error – whether tribunal failed to act in good faith or acted in bad faith – no reviewable error found. |
Migration Act 1958 (Cth), ss.91R, 91X, 430, 474, 477
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Craig v The State of South Australia (1994-1995) 184 CLR 163
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 43
Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 943
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
SBBS v Minister fr Immigration and Multicultural and Indigenous Affairs [2002] 194 ALR 749
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411
W148/00A v Minister for Immigration and Multicultural Affairs [2001] 185 ALR 703
| Applicant: | VMAC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 198 of 2003 |
| Delivered on: | 14 November 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 15 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton |
| Solicitors for the Applicant: | Di Mauro Solicitors |
| Counsel for the Respondent: | Mr Donaghue |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed
The Applicant is to pay the Respondent’s costs of and incidental to the Application in the sum of $4,650.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 198 of 2003
| VMAC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal handed down on 20th December 2002. In that decision, the Refugee Review Tribunal, also referred to in this decision as “the RRT” affirmed the decision of a delegate of the Respondent Minister not to grant a Protection visa to the Applicant. Throughout these proceedings, the Applicant will be referred to by the letters VMAC, rather than his real name, because of a requirement of s.91X of the Migration Act. That section says that the names of applicants for Protection visas must not be published by the Court.
The Applicant originally filed his application in the Federal Court on 9th January 2003, so it was filed in time.[1] On 27th February 2003 the Federal Court transferred the application to the Federal Magistrates Court. On 11th March 2003, the parties agreed that the Applicant would file and serve an amended application on or before 28th March.
[1] S. 477 requires an application under s. 39B of the Judiciary Act to be filed within 28 days
The Applicant claims that the decision of the RRT involved jurisdictional errors and, as a result, the Court should review the decision and remit it to the RRT for rehearing. The Respondent opposes this Application.
Background
The Applicant deposes in his affidavit sworn on the 8th January 2003 that he is a citizen of Nigeria who was born on 15th April 1979. He arrived in Australia on 16th September 2000 holding a sub-class 676 Visitor visa valid until 16th December 2000.
On 23rd October 2000 the Applicant lodged an application for a Protection (Class XA) visa. In his application he claimed that he feared “persecution, torture and death” due to his involvement in the protest against the Muslim majority in that country. He claimed to fear for his religious rights and that he had been discriminated against. He further claimed that implementing Sharia law in Nigeria would deny him his freedom of religion.
On 8th November 2000, a delegate of the Respondent Minister refused his application for a Protection (Class XA) visa. The delegate found that the Applicant could return to Nigeria where he does not have a well-founded fear of persecution for a Convention reason and said that he was “not a refugee.”
On 23rd November 2000 the Applicant lodged an application for review by the Refugee Review Tribunal. The RRT heard the application on 20th November 2002. The Applicant attended the hearing, but he says that his Migration agent did not represent him. The Migration agent sent his receptionist to accompany him on the day.
The RRT handed down its decision on 20th December 2002. The RRT found that the Applicant is a Christian who is a member of the Deeper Life Bible Church. The Tribunal was critical of the vagueness of the Applicant’s evidence about the area in the town of Kaduna, where the Applicant claimed to have lived. The Tribunal was also critical of the vagueness of the Applicant’s evidence about the events in which he claimed to have been involved in Kaduna, and noted that the country information available to the tribunal did not agree with parts of the Applicant’s account.
The Tribunal found that the Applicant had been living in Ibadan, where the majority of the people belong to the Yoruba tribe, the same tribe as the Applicant. The Tribunal accepted “That the introduction of penal Sharia Law, although not applicable to the non-Muslim population, has impacted upon them, in that it has curtailed the sale and consumption of alcohol.”[2] The Tribunal went on to find, however, that the Applicant had exaggerated the risk from Muslims in Ibadan and did not accept that the Applicant had ever been persecuted as a result of being Christian. The Tribunal did not accept that the Applicant had ever been beaten or tortured by Muslims in Ibadan. The Tribunal accepted that random violence was prevalent in Nigeria, but went on to say:
“However, there is nothing to indicate to the Tribunal that the applicant faces a real chance of being a victim of this random violence for reasons of any convention ground.”[3]
[2] Court Book page 079
[3] Court Book pages 079-080
The RRT found that the Applicant did not satisfy the criterion set out in s. 36(2) of the Migration Act for a protection visa, and affirmed the decision of the delegate not to grant a protection visa.
The Applicant’s contentions of fact and law
The Applicant filed a set of contentions of fact and law on 13th May 2003. He submitted that he was involved in a group that had organised a demonstration in the town of Kaduna against the introduction of Sharia law. He submitted that he was fearful of returning to Nigeria because people are killed all the time, and he feared it could happen to him.
The Applicant referred the Court to the decision of the High Court of Australia in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2. In particular, he referred to the finding by Gleeson CJ “that Parliament has not evinced an intention (regarding the privative clause) that a decision of the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question, People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness” (at page 37 of the judgment).
The Applicant also referred the Court to the decision of the High Court in Craig v The State of South Australia (1994-1995) 184 CLR 163. In that case, the Court affirmed the principle that if an administrative tribunal “falls into an error of law which causes it to identify a wrong issue, or 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” (at page 14).
In particular, the Applicant attacks two of the RRT’s findings, as amounting to an error of law of the type referred to in Craig (supra). The first of those findings is that:
“The introduction of penal Sharia law, although not applicable to the non-Muslim population, has impacted upon them in that it has curtailed the sale and consumption of alcohol.”[4]
[4] Court page 079
The Applicant submits that this finding is contradicted by virtually every one of eight matters that appear in the Court Book at pages 70, 32, 47, 49, 50, 53, 57 and 60. As such, he submits that the Tribunal falls into legal error for these reasons:
a)its finding is glaringly improbable and inconsistent with the facts;
b)the finding may not even amount to a bona fide attempt to decide the issue and appears to lack fairness;
c)the finding ignores relevant country information.
The Applicant also attacks the finding of the Tribunal that:
“Oyo State of which Ibadan is the capital is one state which has not introduced Sharia penal law. Sharia Law is applicable to Muslims in relation to family law and personal matters, but the penal code has not been introduced. It is the introduction of this penal code that has led to widespread unrest…The protests by the Muslims in Ibadan noted above indicates that Muslims do not control Ibadan as claimed by the applicant…. The Tribunal finds that there is no real chance that the applicant will be persecuted in the reasonable foreseeable future for reasons of being a Christian…”[5]
[5] Ibid.
The Applicant says that this finding is not supported by any current country information and, in parts, is contradicted by available evidence. He submits that the finding may not even amount to a bona fide attempt to decide the issue and appears to lack fairness. In particular the finding that it is only the introduction of Sharia penal law that has led to unrest is said by the Applicant to reflect legal error, both jurisdictional error and fairness error.
In the Applicant’s contentions of fact and law, he submits that the legal errors lead to a conclusion that the decision of the Tribunal that the Applicant does not satisfy the criterion set out in s.36(2) for a Protection Visa should be quashed. Further, the Applicant submits that if the Court is not mindful to determine the matter, the matter should be remitted to the Tribunal, differently constituted.
I should make clear at this point that the Court is not given the jurisdiction to determine the matter itself. If I am satisfied that the Application should succeed, the matter will be remitted to the RRT.
In his oral submission, Mr Hamilton, Counsel for the Applicant, said that jurisdictional error need not be manifest, notwithstanding the comments by Gleeson CJ in Plaintiff S 157 v Commonwealth of Australia (supra). Mr Hamilton referred me to the decision of the Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 43, which contains a helpful discussion of the effect of jurisdictional error, and whether jurisdictional error is a ground for relief, taking into account the effect of s.474 of the Migration Act.
The Respondent submitted a lengthy set of Contentions of Fact and Law. In particular, the Respondent replied to the Applicant’s contentions that the findings in paragraphs 14 and 16 above, which are said to involve jurisdictional error and “fairness error”, are
a)that they are not supported by, or inconsistent with, the country information;
b)they may not amount to a bona fide attempt to decide the issue; and
c)there are no references to current evidence or alternative evidence.
As far as country information is concerned, Dr Donaghue for the Respondent pointed out that failure to consider or give weight to country reports involves, at most, an error of fact. He referred the Court to Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 943 and Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929. In any event, he submitted, the Tribunal did have careful regard to the country information that was before it.
Turning to the question of whether the errors of the Tribunal “may not even amount to a bona fide attempt to decide the issue, Dr Donaghue speculated on whether the absence of bona fides was in fact asserted by the Applicant or was merely being floated as a possibility. He submitted that, given the serious nature of an allegation of bad faith, the Applicant should withdraw it. If not, it should be rejected. He referred the Court to SBBS v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 and Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431.
The Respondent denies that the Tribunal did not refer to current or alternative evidence to support its conclusions is correct, and referred the Court to pages 74 to 79 of the Court Book. Dr Donaghue submitted that the Applicant had not suggested what that contrary evidence might be. There is no obligation on the Tribunal to set that evidence out. Section 430(1)(d) of the Act requires the Tribunal to prepare a written statement that “refers to the evidence or any other material on which the findings of fact were based.” That, he submitted, is what the Tribunal did in this case.
Even if the Tribunal did make an error of the type that the Applicant claims, the Respondent submits that judicial review is prevented by s. 474 of the Act. The Respondent submits that, as the Applicant’s complaints relate entirely to factual matters, such as the weight given to country information reports, any errors would not be errors such that review would be possible because of the operation of s.474.
The Respondent submitted further that it is not arguable that the decision of the Tribunal was infected by manifest error. It was plainly open on the facts before the Tribunal, leading to a finding that s.474 prevents any judicial review of this decision.
The relevant law
The duty of the Refugee Review Tribunal in recording it s decision is set out in s.430(1):
“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.”
It is not open to the Court in an application of this nature to review findings of fact made by the Tribunal. A decision about the credibility of a witness’s evidence is a finding of fact that remains within the province of the Tribunal. In NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411, Conti J said at [2]:
“So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal.”
In NACV (supra), Conti J referred to the decision of the Full Court of the Federal Court in W148/00A v Minister for Immigration and Multicultural Affairs [2001] 185 ALR 703, where it was held that there was no error in the Tribunal’s holding that the appellant in that case was, generally, not a credible witness. In that case, Tamberlin and R.D. Nicholson JJ held at 716:
“The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”
On the question of country information, any error would be an error of fact. In Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 943, Allsop J said at [24]:
“It is not for the Court to say that it thinks one piece of country information is more material or more relevant than another. It is for the Tribunal to decide for itself as the fact-finder what material it thinks is relevant, unless the Act and regulations make that material compulsorily applicable…failure to give weight to that material can be no more than error of fact. It cannot be denied that the claim based on a fear of religious persecution was dealt with. In so dealing with it the choice of background country information relevant to that matter was a matter for the Tribunal. Nothing in the Act or regulations mandated that the Tribunal prefer or use one body of country information over another.”
Similarly, in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, Gyles J held at [71]:
“It is difficult for a judge on judicial review to become involved in the issue of country information, all the more so on appeal. Country information varies enormously as to reliability and currency. Much of it comes from special interest groups. Most of it has a slant one way or another. Members of the RRT deal with such information on a daily basis, and accord weight or otherwise to it.”
His Honour went on to say at [72]:
“Even if there is country information which appears, in the view of a judge, to point to a conclusion which is contrary to the decision of the RRT, all that can be concluded is that the RRT did not agree with the country information. The country information is simply individual pieces of evidence and there is no obligation upon the RRT to accept any part of it, or all of it, or to say why it does not accept it.”
As can be seen, the evaluation of country information is a matter of fact and, as such, it remains a matter for the Tribunal. It is not subject to review by the Court.
When dealing with the absence of bona fides, it is clear that the circumstances in which the Court will find a tribunal has not acted in good faith will be rare and extreme. Error, irrationality or illogicality will not of themselves demonstrate bad faith.
In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Tamberlin, Mansfield and Jacobson JJ summarised the principles applicable to a determination of whether a decision constitutes a bona fide attempt to exercise the power of review:
“[43] First, an allegation of bad faith is s serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial…
[44] The fifth proposition is that the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review…
[45] Sixth, mere error or irrationality does not of itself demonstrate lack of good faith…Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism…
[46] Seventh, errors of fact or law or illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness…
[47] Eighth, the court must make a decision as to whether or not bad faith is shown by inference from what the tribunal has done or failed to do and from the extent to which the reasons disclose how the tribunal approached its task…
[48] Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power…”
In considering the question of whether there has been a jurisdictional error, it is helpful to look at the judgment of Hill, Branson and Stone JJ in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 43. Their Honours said at [27]:
“The statement that a particular error is a “jurisdictional error” is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action is null and void…The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker’s lawful authority or it is not. If it falls within the decision maker’s lawful authority then the error is made “within jurisdiction.” If it does not fall within the decision maker’s lawful authority then the error is a “jurisdictional error” and as such cannot be a valid action or decision.”
Conclusions
The Applicant has attacked the Tribunal’s decision, particularly in respect of the two findings that I set out in paragraphs 14 and 16 above.
The first ground was that the findings were glaringly improbable and inconsistent with the facts. To my mind, this is clearly a question of fact and, therefore, not subject to review. Even the question if improbability does not make the matter subject to review (W148/00A, supra).
Second, that the finding may not even amount to a bona fide attempt to decide the issue and appears to lack fairness is not supported by any evidence that I can discern. It is clear from SBBS (supra) that an accusation of a lack of bona fides should not be made lightly, and to my mind it is inappropriate to raise the question in the speculative way that the Applicant has done. An allegation of bad faith must either be made directly or not made at all. There is no evidence that the Tribunal dealt with the Applicant in an unfair way, by depriving him of the right to present evidence or make submissions. The only allegation of possible bad faith or unfairness comes from the written reasons themselves. The Applicant’s complaint is that the Tribunal’s findings did not favour his case. An unfavourable decision does not of itself establish bad faith or unfairness.
The Applicant also complains that there are no references to current evidence or alternative evidence. The Tribunal has, to my mind, met its obligation here by setting out the information upon which it relied in pages 74 to 79 of the Court Book. If the Applicant wished the Tribunal to consider alternative evidence, then it was up to him to produce that evidence.
The Tribunal was critical of the vagueness of parts of the Applicant’s evidence, especially about where he lived in the town of Kaduna (page 76 of the Court Book). The Tribunal found that the Applicant had exaggerated parts of his evidence (page 79 of the Court Book), which is a reflection on the Applicant’s credibility. Again, the Tribunal just did not accept the Applicant’s evidence on some issues.
Where the credibility of the Applicant is in issue, this is a finding of fact. I am satisfied that it was open to the Tribunal, having seen and heard the Applicant at the hearing, to be satisfied that his evidence was not credible in certain areas. There does not appear any reviewable error committed by the Tribunal (NACV, supra).
It appears to me that all of the issues raised by the Applicant are issues of fact, except for the suggestion of bad faith, for which there is no evidence at all. It is not open to the Court to review factual issues, so any errors that there may have been, if any, are not subject to review because of the operation of s.474.
There is no reviewable error. The Application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 November 2003
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