VWOM v Minister for Immigration
[2005] FMCA 829
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWOM v MINISTER FOR IMMIGRATION | [2005] FMCA 829 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
| Applicant: | VWOM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1022 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 15 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | VWOM appeared on his own behalf |
| Counsel for the Respondent: | Mr S.D. Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application be reinstated.
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs as agreed between the parties, and failing agreement to be taxed.
There be liberty to apply with respect to the amount of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1022 of 2004
| VWOM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This application was listed before me today for an application to reinstate the judicial review proceedings with respect to a decision by the Refugee Review Tribunal (‘the RRT’) of 31 May 2004.
The applicant appeared in person and advised that he was presenting his own case. Rather than send the matter away to be listed on another date, (after the applicant had satisfied me that there were some genuine miscommunications which resulted in the striking out) I simply set the matter for hearing this afternoon so that it would not be further delayed.
This afternoon the applicant has made his submissions that the true issue is that he is not safe, due to problems between Shia and Sunni Muslims, if he has to return to Pakistan. Given his particular circumstances, he is convinced that he cannot find safety in Pakistan.
The grounds for judicial review are five in number and it is appropriate that I deal with them all.
The first ground is that the decision involved an error of law involving an incorrect interpretation of the applicable law. This and its particulars are drawn in general terms. The decision does not appear to turn upon any questions of interpretation of the relevant test to be applied by the RRT, as ultimately the RRT found against the applicant on a matter of credit. In any event, the RRT has identified the relevant law at the commencement of the decision, and the relevant authorities of the High Court which bear upon the application of that law to the various facts and circumstances in this case. In the circumstances, I can see no error of law in this matter.
The second ground is that the decision involved an error of law involving incorrect application of law to the facts. This seems to be largely a repeat of the first ground. In the particulars, there are three claims:
a)The first is that the RRT did not apply the law to the totality of the applicant's circumstances. I do not see how this can apply in a case where the RRT found against the applicant on matters of fact.
b)The second particular is that the RRT failed to give genuine and realistic consideration to the applicant’s claims, and importantly, the particulars refer to the applicant being a member of the Jhang Sadar political party. It became clear in argument that this was a reference to the Jhang Sadar branch of the Moslem League political party that is referred to by the RRT. A reading of the RRT's decision makes clear that the RRT gave extensive and careful consideration to the claims by the applicant and to the various factual difficulties that confronted the applicant in convincing the RRT that they ought to accept his claim. These discussions occur on pages 5 to 8 of the RRT decision.
c)The third particular is that the RRT failed to speculate about the possibility of the applicant being further harassed and persecuted. It is important to note that it is not for the RRT to "speculate" about the future, either for or against an applicant. It appears that this is perhaps an imperfect reference to some of the comments in the High Court as to the manner in which the RRT ought to approach its considerations when it is unable to make clear findings one way or another. Even if one reads it as a reference to such principles of law, they are not applicable in this case, as the RRT clearly found against the applicant and did not accept his fears as claimed.
The third ground is that the RRT did not observe the procedures required by the Migration Act, and reference is made to section 430(1). It is difficult to identify any procedural error by the RRT that would give rise to jurisdictional error as considered by the High Court in the various relevant cases. It is clear that the RRT had a hearing with the applicant and raised the issues that they wished to discuss with him, as is apparent on the face of the decision. Indeed, the RRT did raise with him a United Kingdom Home Office report which contained information contrary to his evidence (see page 6, fourth paragraph). I see nothing in the material to indicate a ground for judicial review in this regard.
The fourth ground was an allegation that there was no evidence or other material to justify the making of the decision. One has only to read the terms of the decision to see the large amount of material that was ultimately relied upon by the RRT. The suggestion that the RRT ought not to be able to rely upon country information has no basis in law, even though it is particularised in the applicant's claim.
The fifth ground is that the decision is alleged not to have been authorised by the Act, and in particulars, the applicant refers to and relies upon the previous four grounds. The decision was one that is contemplated by the Act; that is, a decision as to whether or not the RRT accepts the applicant's claim for a protection visa. This is the very purpose of the RRT and the hearings that it conducts. To the extent that the basis of the claim is that there is a jurisdictional error because of some other error under one of the preceding grounds, this ground must fail as I have found no error under one of the preceding grounds.
I therefore dismiss the application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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