VWAM v Minister for Immigration
[2005] FMCA 235
•12 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWAM v MINISTER FOR IMMIGRATION | [2005] FMCA 235 |
| MIGRATION – Protection visa – whether jurisdictional error. |
Migration Act 1958, s.36(2), 424A(3)(a), 481(1)(b), 481(1)(c)
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
Minister for Immigration and Ethnic Affairs v Wu Shan Liang Huang Cheng, Jiang and Liu Jun Liang [1996] 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1 (21 January 2000)
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 (31 October 2003)
| Applicant: | VWAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1491 of 2003 |
| Delivered on: | 12 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 January 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs fixed in the sum of $7000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1491 of 2003
| VWAM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of Iran who came to Australia on a visitor visa on 27 February 2001. On 27 March 2001 he lodged an application for a protection visa (the visa). On 25 February 2002 a delegate of the respondent refused to grant the visa. On 7 March 2002 the applicant applied to the Refugee Review Tribunal (the RRT) for review of the delegate's decision. On 7 November 2003 the RRT affirmed the delegate's decision as it was not satisfied that the applicant fulfilled the criterion set out in s.36(2) of the Migration Act 1958 (the Act) for the grant of the visa.
The proceedings were commenced initially in the Federal Court of Australia on 25 November 2003 seeking a writ of certiorari quashing the decision, a declaration pursuant to s.481(1)(c) of the Act that the decision is invalid and contrary to law, an order pursuant to s.481(1)(b) of the Act that the tribunal give further consideration according to law to all matters to which the decision relates subject to the directions that the court thinks fit, an order that the respondent pay the applicant's costs of and incidental to the application and such further orders as the court thinks appropriate. At that time when the application was commenced the grounds for judicial review relied upon by the applicant were as follows:
a)the decision was made without jurisdiction or is affected by an error of jurisdiction;
b)the decision is affected by an error of law;
c)the decision is so unreasonable that no reasonable decision‑maker could have made it;
d)the decision is based on a finding for which there is no evidence or other material;
e)the decision involved an improper exercise of power conferred by the act;
f)the decision was otherwise contrary to law; and
g)the decision was made in bad faith.
It was further argued that the tribunal took into account irrelevant considerations or failed to take into account relevant considerations.
Orders were made in the Federal Court by Marshall J on 23 December 2003 and on that date his Honour ordered that the application be transferred to the Federal Magistrates Court but further made orders on that date that the applicant should file and serve contentions of fact and law by 28 April 2004 and a supplementary court book by 2 April 2004. It is common ground that the applicant has failed to comply with those orders. The applicant, who is unrepresented, claimed not to have the ability to provide the statement of contentions of fact and law without the assistance of a lawyer and I was otherwise prepared to make due allowance for that fact by permitting the applicant to make oral submissions to the court, which essentially he was able to summarise as comprising three essential difficulties which he submitted should encourage the court to intervene in this matter by way of judicial review.
He claimed essentially that the RRT member had a negative view of the application from the beginning. He referred to comments being made by the RRT member, including expressions such as "if I accept that ..." and "even if I accept this ..." were indicative of what I take to be bias, either actual or apprehended, on the part of the tribunal when confronted with assertions of fact by the applicant. A further ground relied upon by the applicant is the acceptance by the RRT of some documentary material concerning the applicant's student status at a critical time in the application which should become apparent in this decision. He further claimed that country information relied upon by the RRT was information which was dated and in some instances at least four years old, and, as I understand it, on that basis claimed that there was an error of a kind which would attract judicial intervention.
It is relevant in considering the issue of jurisdictional error to incorporate in this decision and apply a 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 the following:
“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.”
It is also relevant to note, and I accept, that country information of itself may fall within the exception found in s.424A(3)(a) of the Act and the obligations in s.424A of the Act (see VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 per Kenny J at [50]).
I further note authorities referred to and relied upon by the respondent that in matters of this kind the RRT's reasons must not be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (see per Brennan CJ, Toohey, McHugh, Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang Huang Cheng, Jiang and Liu Jun Liang [1996] 185 CLR 259 at 271‑272).
Further, I accept as a matter of law that the RRT is not required to give a line‑by‑line refutation of the evidence for the claimant, either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1 (21 January 2000) per McHugh J at [68]).
Further, I accept that even if the reasoning of the RRT were illogical, which is not a want of logic, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional (see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 (31 October 2003) per Tamberlin, Emmett and Weinberg JJ at [30]).
The decision
The decision of the RRT in the present case sets out the claims made by the applicant and further considers the evidence by the applicant in support of those claims. It is noteworthy that the applicant gave evidence before the RRT, and that after the hearing the RRT received translations of the applicant's student card, together with translations of what are described as academic records for 1993/1994 and university enrolment for 1994. It will become apparent that of crucial significance in the present application and indeed an issue which might properly be described as a threshold issue was the claim by the applicant that he had as a student participated in a demonstration against the government in July 1999. It is clear that in its findings the RRT has rejected that claim by the applicant, both in the sense of him being a student at the relevant time and indeed being present at the demonstration. It is clear, in my view, that that is the core issue which the RRT was required to consider.
It is not necessary, nor appropriate, in an application of this kind that the court should then recite each and every claim made by the applicant on his own behalf, but rather it is appropriate to at least analyse the crucial issue before the RRT, namely, whether or not the applicant was indeed a student who participated in a student demonstration in July 1999. On my reading of the findings and reasons of the RRT's decision, it has made findings of fact which clearly are disputed by the applicant.
Before this court the applicant argued that the RRT was wrong to draw a conclusion that he provided inconsistent evidence about whether he had indeed been a student at all during July 1999. He conceded, however, during the course of submissions that he did not have either at the time of the tribunal hearing or shortly thereafter a transcript of university records which would establish that he was indeed a student during the academic year 1999. He asserted, however, that he was the holder of a student card issued to him initially at the commencement of his four‑year course and that he had in fact been absent from that course for a period of time when he deferred for approximately two years.
Whilst it is clear to me that there is some issue about the dates and the period of time when the applicant deferred, it is, in my view, a matter of fact open to the tribunal to conclude that there were inconsistencies in the material provided by the applicant to the RRT compared with material provided by the applicant to the delegate. The RRT in its reasoning process points out the inconsistencies, but in any event he further was entitled, in my view, to rely upon the inadequacy of the documentary material which on the one hand provided at least some evidence of the applicant deferring his course for the period 1995 to 1997 and studying in the period 1993 to 1994, though being deficient in assisting the applicant to establish that he was a student in July 1999.
In any event, even if the RRT had made a wrong finding of fact in relation to that issue, and in my view it has not made an incorrect finding, that alone would still be an insufficient basis upon which this court could interfere in the decision on the basis of any jurisdictional error or otherwise.
It is clear to me that the issue of country information was likewise a matter of some concern to the applicant. However, I accept the authorities to which I referred earlier in relation to country information and in any event note that the range of country information appropriately seemed to relate to a period from 1999 up to and including the period 2001. That country information relied upon by the RRT was particularly relevant to the issue of the applicant being able to leave Iran upon a visa, and in the circumstances it is clearly relevant, in my view, for the tribunal to have regard to country information addressing that issue. Again, adverse findings were made against the applicant arising out of those facts and country information which are of a kind that, in my view, cannot attract judicial intervention.
On a proper reading of the RRT's decision, it is clear to me that it has properly and accurately reflected the claims and material presented to it by the applicant, both at the hearing and by way of translated documentary material after the hearing. It has properly taken into account country information and has then embarked upon its fact‑finding mission in an appropriate manner which was then open to it on the facts. Even if I were to conclude that it had made a wrong finding of fact, that would not in the circumstances as a matter of law in this case be sufficient to justify judicial intervention. As I have indicated, I am not satisfied in any event on the material before me that there has indeed been a wrong finding of fact or indeed even a want of logic in the reasoning process undertaken by the RRT.
One remaining factor which was raised by the applicant is the issue of apprehended or actual bias. It is not necessary for me to recite in detail the authorities in relation to that issue save and except to note that consistently the High Court and the Federal Court have stressed the fact that an allegation of bias is an allegation which is of a serious kind and even prior to S157 was an issue which was difficult to raise on behalf of applicants and where the threshold indeed was very high. Having regard to the authorities, it is clear to me that the mere assertion by an applicant that the RRT had taken a negative view from the beginning by the use of the phrases to which I had referred to earlier in this judgment is clearly not sufficient, in my view, to justify a finding of actual or apprehended bias of a kind which would again attract judicial intervention.
It follows for those reasons that the application should be dismissed and that the applicant should pay the respondent's costs fixed in the sum of $7000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 January 2005
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