VQAW v Minister for Immigration - [2005] FMCA 609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VQAW v MINISTER FOR IMMIGRATION

[2005] FMCA 609

MIGRATION – Protection visa – whether jurisdictional error.

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

VQAW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1391 of 2003

Judgment of:

McInnis FM

Hearing date:

21 April 2005

Delivered at:

Melbourne

Delivered on:

10 May 2005

REPRESENTATION

Pro Bono Counsel for the Applicant:

Ms N. Karapanagiotidis

Counsel for the Respondent:

Mr E.J.C. Heerey

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1391 of 2003

VQAW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

By an application filed on 18 July 2003 in the Federal Court of Australia the applicant seeks review of a decision made by the Refugee Review Tribunal (the RRT) dated 3 June 2003. The RRT decision had affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a protection visa. The background facts and circumstances in this application are not in dispute and have been appropriately set out in the applicant's contentions of fact and law in the following terms:
(1)The applicant arrived in Australia on 13 January 1999 on a temporary business visa.
(2)On 9 February 1999 the applicant lodged an application for a protection visa. The applicant claimed to be stateless and to have no citizenship, nationality or rights of entry to any country.
(3)The applicant's claims are set out in his protection visa application dated 8 February 1999 [CB 1‑23] and the applicant's statutory declaration of 8 February 1999 [CB 24‑30].
(4)On 20 May 1999 the delegate of the Respondent refused to grant the applicant a protection visa [CB 61‑67].
(5)On 3 June 2003 the Refugee Review Tribunal affirmed the delegate's decision not to grant a protection visa.
(6)The applicant provided the following material to the Tribunal in support of his case:
(a)Correspondence from the Victorian Eritrean Community Association, 2 May 2003 [CB 74];
(b)Correspondence from Pastor Geofrey Mayimba, undated [CB 75]; and
(c)Correspondence from Office of the Chief Administrative Officer, Arua District, 4 May 2000 [CB 78].
(7)The material referred to in the preceding paragraph was not before the delegate at the time of his decision.
The Applicant's Claims
(8)The applicant's primary claims were as follows:
(a) He was born in 1980 in Karen, Eritrea. He has no documents to be able to establish his Eritrean nationality.
(b)His parents were Eritrean and his father had worked for the Eritrean Liberation Front. He has two older brothers.
(c)From 1982 to 1990 the Applicant and his family stayed in Kasala, Sudan. The family fled to Sudan because of his father's political involvement and because of the war between Ethiopia and Eritrea. The applicant does not know what legal status he or his family held in Sudan [CB 24.3].
(d)Around 1990 a gang of armed men raided the applicant's village. From the date of this incident, the applicant has not seen his mother or brothers again. His father was also captured, reportedly by the Eritrean Peoples Liberation ("EPLF") and held at a training camp. After a few days, his father managed to escape and returned to his village. The applicant and his father then travelled to Uganda and for three years stayed at a camp in Arua [CB 25.2]. The applicant believes that the camp was organized by the United Nations [CB 24.4].
(e)In 1994 the applicant's father was killed at the camp. The applicant left the camp on his own as he was 'afraid that it would just be a matter of time before[he] was killed by another person from the camp, or die of illness or malnutrition' [CB 26.2].
(f)The applicant travelled to a town named Jinja and was allowed to stay in a shed attached to the Baptist Mission of Uganda Church. At the Church, life was difficult for the applicant and he lived in poverty. The applicant participated in the English classes held by the Church and also did odd jobs such as washing clothes by hand for the local people [CB 27.1].
(g)The applicant arranged to obtain a false passport by paying the total sum of 200,000 (about US $170) [CB 27.3].
(h)The applicant swam in the lakes often was not a 'terribly good swimmer' [CB 28.2]. By organizing to pay the sum of 500,000, the applicant arranged to travel to Australia through the Sharks Swimming Club. The applicant raised the money over approximately a two year period by begging, washing clothes and selling some of his possessions [CB 28.3].
(i)The applicant left Uganda on 12 January 1999.
(j)The applicant is not a Ugandan citizen and does not have a right to return to Uganda. The applicant has no citizenship, nationality or rights of entry to any country [CB 29.4].
(k)The applicant claimed that if he returned to Uganda he would be jailed and deported to Eritrea or Sudan. He claimed that he would face problems in Eritrea because his father's political opinion was different from that of the government [CB 86.4].
In the application before this court the applicant has relied upon an amended application filed on 16 September 2003 and, as indicated, has otherwise relied upon facts and contentions. The applicant has had the advantage before this court of pro bono representation. In the amended application the grounds of the claim are set out in some detail, though before this court it was conceded there was to some extent overlap in the grounds, and further it is noted that an issue of unreasonableness in relation to this claim was not pressed, that is, the court notes that in the contentions the matter raised of there being what was described as "jurisdictional unreasonableness" at the finding in respect of the applicant's nationality was based on flawed logic and reasoning and not supported by the evidence before the tribunal was not pursued. In general terms, however, it seems that the application before the court essentially relies upon what is described as the failure to consider all aspects of the applicant's claims.
Specific reference was made to a passport which was considered by the RRT and which appears in the court book at page 31. The applicant before the RRT had referred to that passport containing false details. He expressed concerns about telling his true story under torture and his flight from Eritrea, the country of which he has no memory. According to the RRT decision (Court Book p.86) the applicant claimed he would be gaoled for certain and deported to Eritrea or Sudan. He claimed that he would face problems in Uganda because his father's political opinion was different than that of the government. The false details in the passport for present purposes I take to be accepted included the incorrect place and date of birth. The place of birth should have been Eritrea, and the date of birth, though correct in the year, would appear to be claimed now to be an error in terms of the month, although on my reading of the material not a great deal turns upon the nature and extent of the error, but rather the mere fact that there is an error and/or false information in the passport which, as claimed, may lead to adverse consequences. In particular, as I understand the arguments advanced for and on behalf of the applicant, the RRT should have considered that issue in light of what might occur to the applicant should he be required to return to Uganda. It is noted that the RRT in its findings and reasons had made a specific finding as to the genuineness of the passport.
An issue before this court raised for and on behalf of the applicant by way of a further ground appeared to be a failure on the part of the RRT to make a finding as to the country of birth, namely, Eritrea. I note in passing under the heading "Findings and Reasons" that the following appears at court book page 87 in the RRT decision:
“The applicant essentially claims to be a national of Eritrea but argues that, since he has lost his father and has been separated from his mother and brothers and has lived in refugee camps and not in Eritrea since he was two years old, he should be considered to be stateless.
The Tribunal has considered carefully the applicant's claims in this regard. It has also had regard to the evidence allegedly requested by the applicant from the Office of the Chief Administrative Officer, Arua District, Uganda. That letter states that the applicant was a recognised refugee since 1991, a statement the Tribunal is prepared to accept. The Tribunal also notes that the applicant travelled to Australia on a passport which the DIMIA Document Examiner considered to be genuine. On the basis of the letter from Arua and the passport on which the applicant travelled, the Tribunal finds that the applicant may be considered to be a national of Uganda and that Uganda is the country of reference against which his claims should be judged.
The Tribunal is prepared to accept that the applicant may have been born to Eritrean parents and that he may have spent time in refugee camps. It is prepared to accept that he may have lost or been separated from the rest of his family during this time. The Tribunal accepts that the applicant was young and that his experiences and memories of those experiences may not be clear. However, the Tribunal is not satisfied that the applicant's overall account of his time and experiences in Kasala and Jinja and the details of how he came to travel to Australia are credible. The Tribunal was struck by the applicant's claims of ignorance of the refugee camp in Arua he lived in, and fundamentally he was confined to his hut in the camp for three years and did not even venture out to play with other children, claims which the Tribunal rejects for their lack of credibility. Even if the Tribunal accepts that the applicant was granted recognised refugee status in Uganda, it is not satisfied with the explanation provided by the applicant about his life in the camp.”
The RRT in its decision goes on to consider further details in the context of the birthplace of the applicant and other matters and then further draws the following conclusions at Court Book page 89:
“The delegate was also concerned by the applicant's account of how he found an Eritrean family in Melbourne on the basis of a telephone number allegedly given to him in Uganda. The Tribunal finds similar difficulty in accepting such a claim given that no other credible explanation of how, why and by whom the alleged number was provided. The applicant's actual departure from Uganda and arrival in Australia have all the hallmarks of a carefully orchestrated passage, a voyage made legally on a genuine passport, and for this reason the Tribunal rejects all the applicant's claims of how and the circumstances under which he claims he came to Australia.
In considering the rest of the applicant's claims, the Tribunal recognises there is considerable difficulty in accepting the applicant's claims about his birthplace and early experiences. Even if the Tribunal accepts that his parents were Eritrean, that he lost them both through death and separation as well as his brothers and that he spent time in refugee camps, there is no evidence before the Tribunal that the applicant is other than what his own documentation declares him to be: a recognised refugee in Uganda who has since obtained a genuine Ugandan passport.
The Tribunal has considered the evidence of the applicant's witness in this regard but does not find the evidence of confirmation of his identity from a scar on the applicant's face convincing. Even if the Tribunal is wrong and the applicant is as he has claimed and as his witness testified, the Tribunal has still found the applicant has the documentation of a Ugandan national.
For the reasons outlined above, the Tribunal has found that the applicant is a national of Uganda and does not face a real chance of persecution in relation to his country of nationality. As the applicant has been found not to be a refugee in relation to Uganda, his country of nationality, it is not necessary for the Tribunal to consider the applicant's claims relating to his fear of persecution in Eritrea.”
It is noted that apart from the general second ground of failure to make a finding in relation to the country of birth, that the applicant otherwise relies upon a failure by the RRT to further consider the issue of the right of the applicant to return to Uganda in the light of the false information in the passport and to further consider whether or not indeed the applicant would be permitted residence in Uganda if he is not a national of that country.
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 of course 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).
The respondent has submitted that the grounds relied upon in this instance cannot form the basis of any judicial review, nor support a conclusion that there has been jurisdictional error. It is not necessary for me to deal with assertions made in the amended application of unreasonableness or illogicality. Further, in my view, applying the authorities to which I have referred and having regard to the reasons in the RRT decision based upon the claims set out earlier in this judgment, I cannot see any basis upon which this court could conclude there has been jurisdictional error. The mere fact that there is an issue about the birthplace of the applicant does not, in my view, lead to a conclusion that that should have been explored further with a precise finding. The RRT, given its other findings as to the nationality of the applicant and the genuineness of his passport, did not need to consider further that in this instance it was satisfied that the applicant was indeed a national of Uganda and that was the country of reference. It was then necessary for the RRT to consider whether indeed the applicant could properly be regarded as a refugee. It concluded the applicant was not a refugee. In fact it goes on in its reasons to state the following at Court Book page 89:
“… The Tribunal has questioned the applicant's credibility and his claims and has found that, regardless of where he may have been born, he may be considered to be a national of Uganda and has travelled legitimately on one of its passports. As he may be considered to be a national of Uganda where he does not face a Convention‑related fear of persecution his fears of persecution are not well founded. He is not a refugee.”
That finding which follows after an analysis of the material, including the genuineness of the passport and an analysis of the nature of the voyage made legally on that genuine passport, is a conclusion reasonably open to the RRT in its fact‑finding process. I do not see any requirement of the RRT to then consider, having made those findings, what may or may not occur to the applicant upon his return, even assuming that the passport contains some false details.
It was submitted by the respondent and I accept that the mere fact that the passport may contain false details concerning birthplace and date of birth does not necessarily invalidate the passport or detract from the RRT's conclusion that it was a passport that was genuinely issued to the applicant upon which he legitimately travelled. Accordingly, that fact, as asserted by the applicant, that the passport contains false details does not of itself lead to a conclusion or would lead to a conclusion that the RRT had made an error of a kind which would attract judicial review. It was entitled to assess the material, including evidence from the document examiner, and further to consider other material which may or may not contain some inconsistency and then reach a conclusion as to the genuineness of the passport.
Once having found the applicant to be a national of Uganda who does not face a convention‑related fear of persecution on the basis that his fears of persecution are not well founded, it seems to me that the RRT was not then obliged to further examine the birthplace of the applicant or indeed consider the consequences that may flow upon the alleged false information in the passport being revealed to the Ugandan authorities upon the applicant's return.
The RRT has properly embarked upon its task of assessing the nationality of the applicant which then led it to determine that Uganda was the country of reference against which the claim should be judged and has otherwise interpreted correctly the requirements which it must satisfy in considering the definition of refugee. It has reached a conclusion open to it on the evidence free of jurisdictional error.

It follows, in my view, the application should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 May 2005