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MIGRATION - Refugee Review Tribunal - protection visa - no jurisdictional error - application dismissed.

MZQAP v Minister for Immigration [2004] FMCA 595 (13 September 2004)

MZQAP v Minister for Immigration [2004] FMCA 595 (13 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZQAP v MINISTER FOR IMMIGRATION
[2004] FMCA 595



MIGRATION - Refugee Review Tribunal - protection visa - no jurisdictional error - application dismissed.



Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541

Weheliye v Minister for Immigration and Multicultural Affairs (2001) FCA 1222 (unreported 31 August 2001)

Huang v Minister for Immigration and Multicultural Affairs (2000) FCA 820 (unreported 20 June 2000)

Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225

Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65

NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Applicant:
MZQAP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MLG 730 of 2003



Delivered on:


13 September 2004



Delivered at:


Melbourne



Hearing Date:


5 August 2004



Judgment of:


McInnis FM


REPRESENTATION

Solicitor for the Applicant:


Frank Sabelberg



Counsel for the Respondent:


Mr C. Horan



Solicitors for the Respondent:


Blake Dawson Waldron



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 730 of 2003

MZQAP


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. By an application filed on 16 October 2003, as amended, the applicant seeks to challenge a decision of the Refugee Review Tribunal (the RRT) made on 28 May 2003. The applicant had made an application for a protection visa pursuant to the Migration Act 1958 (the Act).

A delegate of the respondent had refused the application for a protection visa and the applicant thereafter applied to the RRT for review of that decision. The RRT in the decision dated 28 May 2003 handed down on 20 June 2003 affirmed the delegate's decision not to grant the protection visa.

2. In its decision the RRT set out in some detail the background to the application. In brief terms, it is common ground that the applicant claims to be a citizen of India born in Tamil Nadu in southern India to parents of Indian Tamil origin. He had arrived in Australia on 5 September 2001 and lodged the application for a protection visa on 4 October 2001. Essentially, the applicant claimed to be involved in assisting Sri Lankan Tamils and supporting the Liberation Tigers of Tamil Elam (LTTE) in Tamil Nadu in India. The applicant claimed that in April 1991 he was arrested, detained and tortured over a period of four months by the Tamil Nadu authorities because of his pro-LTTE activities.

3. In 1998 the applicant claimed to have joined Marumalarchi Dravida Munnetra Kazhagam (MDMK), a political party in India that actively supports the LTTE cause. It is claimed that in 1991 the applicant became secretary of the local branch of the party and in August 2001 police came to his home to arrest him for his pro-LTTE activities. It is then claimed that he alluded the police and subsequently left for Australia.

4. The applicant claims as a result of that background he has a well-founded fear of persecution for reasons of his political opinion based on his membership of MDMK and support for the LTTE.

5. The RRT decision was based upon material before it which had been provided by the applicant and otherwise material which the RRT considered relevant including country information. It is appropriate to set out the findings and reasons of the RRT in some detail as those findings are matters which have been raised in support of the application. Before doing that, it is useful to set out the grounds now relied upon in the amended application filed 16 October 2003. In the amended application the following grounds are relied upon:

"1. The RRT erred in law and thereby did not act within jurisdiction in making the decision because

(a) The RRT erred in law in failing properly to interpret or apply the law including section 36(2), section 91R(1) and Part 7 of the Act in determining whether the applicant had well-founded fear of future persecution, and thereby the tribunal failed to consider and determine relevant material being the substantive issues raised by the evidence presented by the applicant in support of his fear of future persecution.

(b) The RRT erred in interpreting the term 'for reasons of ... membership of a particular social group' in the definition of a refugee under the Refugees Convention incorporated by section 36(2) of the Act, and as a consequence by not giving any or any proper consideration to the applicant's contention that because of membership of a particular political party namely the MDMK.

(c) The RRT erred in interpreting section 91S of the Act, as a result of which it erroneously considered it `must find that the Applicant is not a person who has a well-founded fear of persecution for reasons stated in the Refugees Convention' (Court Book p.81.4)

(d) The RRT failed to consider and determine whether the Indian government was not able or willing to provide protection for the applicant where the Tamil Nadu government took actions against officials of the MDMK selectively."

6. In considering the grounds for appeal I note at the outset that those grounds referred to as 1(c) and (d) were not pursued with vigour in the application before the court, although relied upon and referred to in the applicant's contentions of fact and law to some extent. Specifically, in relation to ground 1(c), I can see no possible basis upon which it could be said that any error arises and indeed I find it difficult to understand or comprehend the nature of this ground. That ground must therefore fail.

7. In relation to ground 1(d), it is clear that that ground would depend to a large extent on the view the court takes in relation to grounds 1(a) and 1(b). It is appropriate to note the RRT's findings and reasons commence at court book page 91 and conclude at page 95 with the conclusion referred to later in this judgment.

"The Tribunal accepts that on 11 July 2002 the leader of the MDMK together with a number of other senior party members has been arrested under the POTA for publicly showing support of the LTTE a banned organisation. As at 22 April 2003 he was still in custody. However reports relating to his arrest indicate that he is pursuing legal means against his arrest. He has filed a petition challenging his detention and the government has filed an affidavit supporting his petition (see Malhotra, Inder 2003. `The plot thickens', The Hindu, 3 April).

...

There is no evidence before the Tribunal that this Act will be being enforced selectively against the applicant for a Convention reason. The Tribunal finds that any prosecution of the applicant for his support of the LTTE is no more than the application of a law of general application, and does not amount to persecution within the meaning of the Convention."

8. As I understand the applicant's submissions, essentially the RRT's decision is criticised on the basis of what might be described as its failure to make a finding and/or interpret correctly the law in relation to whether or not the applicant had a well-founded fear of persecution by failing to find that a law introduced as an anti-terrorism measure, namely the POTA, was applied selectively and/or enforced selectively in a way which would be found in circumstances to constitute a persecution for a convention reason.

9. The respondent contended that in this application the RRT has properly addressed its task and identified the test to be applied in matters of this kind. Further reference was made to recent decisions, and in particular a decision of the High Court in the matter of Applicant S v Minister for Immigration and Multicultural Affairs (2004) 77 ALD 541 at 552, at paragraphs 43 and 44 as follows:-

"[43] The criteria for the determination of whether a policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is `appropriate and adapted to achieving some legitimate object of the country [concerned]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the court's decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate objective.

[44] In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the state of its citizens. ..."

10. The respondent further referred to a decision of Goldberg J of the Federal Court in the matter of Weheliye v Minister for Immigration and Multicultural Affairs (2001) FCA 1222 (unreported 31 August 2001) and in particular drew the Court's attention to paragraphs 51, 52 and 53 as follows:

"51 There are two aspects to a consideration of whether punishment under a law of general application may constitute persecution for a Convention reason because it is discriminatory. The first aspect is to determine whether the law is in fact of general application and is not a law which targets or applies only to a particular section or group of the population. The second aspect is to determine whether, if the law is of general application to the whole of the population, it is nevertheless applied and administered in a discriminatory manner.

52 This second level of consideration has been addressed in a number of authorities. In Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51 Katz J accepted as correct the approach of Beaumont, Hill and Heerey JJ in Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309. Their Honours said at 319:

`Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.

The foregoing may seem a truism, but it needs to be kept firmly in mind because some of the reasoning in the authorities does disclose a tendency to argue that the more abhorrent the persecution is, the more likely it is that the targets of that persecution are members of a particular social group."

53 Katz J pointed out that the High Court affirmed on appeal the decision of the Full Federal Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and that Dawson J, who with McHugh and Gummow JJ comprised the majority, cited this passage from the judgment of the Full Federal Court and approved it (at 245). Katz J noted that McHugh J took a somewhat different approach from that of Dawson J to the issue of the enforcement of a generally applicable criminal law and that Gummow J did not specifically refer to the question whether the enforcement of generally applicable criminal laws can involve either persecution for a Convention reason or persecution simpliciter. Katz J found nothing in the judgment of the majority of the High Court in Applicant A which compelled him to depart from the approach of Beaumont, Hill and Heerey JJ and he accepted that approach as correct. Katz J continued at 58:

`I turn now to a discussion of the fact that Beaumont, Hill and Heerey JJ, in their approach to the question whether enforcement by a country of one of its prohibitory criminal laws of general application could involve persecution for a Convention reason, sounded a warning note. That warning note was that such enforcement would not, without more, involve persecution for a Convention reason.

Their Honours did not identify those additional features which, in their view, would render enforcement by a country of one of its prohibitory criminal laws of general application persecution for a Convention reason. However, I infer that what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons' race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons' race, religion, nationality, membership of a particular social group or political opinion.'

Katz J concluded that the Tribunal had not been compelled on the material before it to find that the prosecution of the applicant on his return to Iran would be selective or that the punishment would be discriminatory."

11. Further reference was made by the respondent to the decision of Sackville J in the matter of Huang v Minister for Immigration and Multicultural Affairs (2000) FCA 820 (unreported 20 June 2000). The court was taken to the reasoning in that case of his Honour where he dealt with the issue of a risk of persecution for convention reasons. In particular, the court was taken to a passage in that judgment where His Honour had to consider the issue of well-founded fear of persecution for reasons of membership of a particular social group and in particular considered the criticism which may be levelled at the RRT in circumstances where having found that there was not a well-founded fear of persecution, whether or not it could be criticised for their not finding specifically that there was no well-founded fear of persecution for reasons of membership of a social group. The passage to which the court was taken appears at paragraphs 25 and 26 of the judgment as follows:-

"25. It was not suggested that the basis for the applicants' feared perecution would have been different had they relied on the fact that they were members of a particular social group comprising active participants in the pro-democracy movement (as distinct from relying on the fact that they had actively participated in the pro-democracy movement). Mr Benson did not contend that the applicants would have relied on any additional or alternative facts to support their claim that they had a well-founded fear of persecution if they were to return to the PRC. Nor did he explain how the applicants' case on persecution would have been advanced by the contention that, by reason of their involvement in the pro-democracy movement, they had become members of a `particular social group'.

26. If the applicants had relied on the same evidence to establish that they had a well-founded fear of persecution for reasons of membership of a particular social group, the RRT would have reached the same conclusion. Just as the finding that any fear of persecution held by the applicants was not well-founded defeated their claim to have a well-founded fear of persecution for reasons of political opinion, so it would have defeated a claim that they had a well-founded fear of persecution for reasons of membership in a particular social group."

12. Having regard to the analysis of the facts by the RRT and the principles of law set out in its findings and reasons, it is clear to me and I accept the respondent's submission that the RRT has applied the correct law in considering the matter. In particular, it has applied the correct principle of law in relation to the issue of whether or not the applicant had a well-founded fear of persecution. It has correctly identified and applied the relevant principles cited in Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 and has further applied correctly, in my view, the principles of law as set out by Katz J in the unreported decision of Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51. It is noted that that decision has been followed in a number of subsequent decisions identified by the RRT.

13. The RRT then proceeds to make significant findings of fact which on a proper and careful reading of all the material before this court would appear to me to be open to it in the circumstances of this case. Specifically, after considering the role of the applicant and the circumstances of his claimed arrest, the RRT was entitled to consider surrounding circumstances now claimed to be relied upon by the applicant as providing evidence of selective enforcement of the POTA. It was claimed before this court, and indeed before the RRT, that the arrest of one of the leaders of the political group, namely Mr Vaiko, and the conduct of the chief minister of the relevant state were matters which the RRT ought to have taken into account in reaching a conclusion that whilst the POTA may have been a legitimate exercise of the country's power to introduce legislation, the enforcement of that legislation was undertaken in a selective manner.

14. In my view, a proper reading of the RRT's decision indicates that it did take into account the relevant material and reached a conclusion of fact reasonably open to it in all the circumstances.

15. After analysing the material and properly considering the case as put before it by the applicant, in my view, there can be no error in the RRT's reasoning if it failed to specifically proceed to consider the applicant's membership of a particular social group, assuming for the present purposes that the applicant has properly identified the social group.

16. I accept and apply the reasoning of Sackville J in the case of Huang to which I have referred as, in my view, the same reasoning applies to the present application. I can see no different outcome which would arise in an application of this kind had the RRT proceeded to consider the issue of well-founded fear of persecution for reasons of membership of a particular social group in circumstances where it has properly, in my view, applied the law and reached a conclusion that in this case it was not satisfied that there was evidence before it that the particular act, that is, the POTA, was being enforced selectively against the applicant for a convention reason and was otherwise not satisfied on a proper analysis of the material that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee Protocol.

17. Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-

"82. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

`falls into an error of law which causes it to identify a wrong issue, to 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. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

18. It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-

"...There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]."

19. I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -

"31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.

...

33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):

`... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as �a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.'

...

35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474."

20. The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-

"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 or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 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 it cannot be a valid action or decision.

28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

�The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'

Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157."

21. Applying the principles of law which now arise after the decision in S157 and considering the authorities to which I have been referred by the respondent, I accept in the circumstances of this application there has been no identifiable error and no basis upon which this court could conclude that there has indeed been a jurisdictional error of a kind which would attract the Court's intervention in this matter. Accordingly, for the reasons given, it follows the application must be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 13 September 2004
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