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MIGRATION - Protection visa - whether jurisdictional error.

MZWAE v Minister for Immigration [2004] FMCA 923 (2 December 2004)

MZWAE v Minister for Immigration [2004] FMCA 923 (2 December 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWAE v MINISTER FOR IMMIGRATION
[2004] FMCA 923




MIGRATION - Protection visa - whether jurisdictional error.




Unlawful Activities (Prevention) Act 1967

VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 3 (6 February 2004)

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Avesta v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 121

Applicant:
MZWAE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 1289 of 2003




Delivered on:


2 December 2004




Delivered at:


Melbourne




Hearing Date:


28 October 2004




Judgment of:


McInnis FM




REPRESENTATION

Counsel for the Applicant:


Mr T Fernandez




Solicitors for the Applicant:


Mano Associates




Counsel for the Respondent:


Mr W Mosley




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The Application be dismissed.

(2) The Applicant shall pay the Respondent's costs fixed in the sum of $7,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 1289 of 2003

MZWAE



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a Muslim citizen of India who was born on 16 September 1965. He arrived in Australia on 28 January 2002 on a visitor visa. On 27 February 2002 he applied for a protection visa. The application was refused by a delegate of the respondent on 14 May 2002. On 5 June 2002 the applicant sought review of that decision by the Refugee Review Tribunal (the RRT). The RRT affirmed the delegate's decision in a decision made on 24 September 2003. The applicant filed an application in the Federal Magistrates Court on 20 November 2003 seeking review of the RRT decision.

2. The application was subject to an amendment and an amended application was filed on 13 April 2004. On the same date the applicant who was represented filed contentions of fact and law. Before the court upon the hearing of the application the applicant's representative indicated that effectively there would be only one ground relied upon in support of the application. That ground to some extent reflected particulars subjoined to the original ground, that is, ground 1 of the original application which had been filed at the commencement of these proceedings. In any event, it was clear that other grounds sought to be relied upon in the amended application and referred to in the applicant's contentions of fact and law were to be abandoned.

3. In the circumstances it was appropriate that I permit the applicant to further amend the application without the need for a document to be filed based upon the consent of the respondent. Hence, the ground now relied upon by the applicant in this application may be stated as being that on a fair reading of the tribunal's findings and decisions the applicant asserts the following constitute jurisdictional error justifying the relief sought:

"The tribunal misconstrued and misapplied the definition of the term `refugee' because it failed to give proper consideration to the claims of the Applicant taken cumulatively. In particular the Tribunal has not dealt with his claim that he was persecuted for reasons of his religion/race as a Muslim within the context of his association with Al-Ummah."

Relevant law

4. It should be noted that the relevant law in relation to this matter since the High Court decision in S157 has been usefully set out in a passage which I adopt and apply in the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the court states at paragraph 16 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.

5. It is also appropriate to note at the outset that in relation to the issue now raised in the remaining ground of appeal, namely the concept of the claim of the applicant to be taken "cumulatively", that it is relevant to refer to the High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 where at paragraph 49 McHugh J states the following:

"49. Ground 5 therefore expressly alleges jurisdictional error. While the ground is cast in the language of the failure to consider a relevant consideration, (ie "the cumulative effect of the prosecutor's claims and the evidence in support of them"), it is in substance a quarrel with the overall finding of fact made by the Tribunal - that the prosecutor did not have a well-founded fear of persecution for a Convention reason. The language of "cumulative effect" adds nothing. The absence of a substantive complaint of an error of law in this ground (as opposed to a quarrel with a factual finding dressed up as an error of law), combined with the failure to make out Grounds 3 and 4 compel the conclusion that Ground 5 is not made out."

6. It is relevant to note having regard to the findings of the tribunal a further passage of McHugh J in the Durairajasingham case where at paragraph 67 his Honour states the following:

"67. In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged."

7. I adopt and apply the extracts from the judgment of McHugh J in Durairajasingham for the present purposes. I note in passing that the applicant in submissions also referred to the decision of McHugh J at paragraph 36 in the Durairajasingham case where his Honour states:

"Clearly, the failure to take into account relevant considerations can constitute a jurisdictional error."

Background

8. By way of background, it is noted further that the applicant in his initial claim had made a number of statements which are set out in the court book. It is important to set out verbatim those claims highlighted by the applicant's representative in this application. The applicant states the following in his initial claim:

* The Indian police suspected him of helping Al-Ummah financially.

* Al-Ummah is a proscribed organisation.

* That the police will implicate the applicant with Al-Ummah and other terrorist activities perpetrated by Muslim activists.

* Because the applicant is a Muslim, they also suspect him of involvement with terrorist activities.

* Because the applicant is a Muslim, they had already made false charges against him (see court book pages 18 to 20).

9. Apart from those claims which were specifically highlighted by the applicant's representative, the applicant otherwise claimed that he was falsely implicated and charged under the Unlawful Activities (Prevention) Act 1967 for helping with funds and being a party to an illegal organisation and that after the Indian parliament was attacked the police again came looking for the applicant who had travelled to Malaysia on business and returned to India on 10 occasions between April 1999 and May 2001. Further, it is claimed that the applicant left India legally, although his agent bribed immigration and he had no difficulty obtaining his passport on 1 January 1999. In his initial claim the applicant stated that he would provide copies of the police charge sheets at a later time, although no charge sheets were subsequently provided.

10. In the delegate's decision consideration was given to the assertion that the applicant may have been charged with a minor offence between February 1998 and June 1999 but considered that the authorities did not regard the applicant as a threat as evidenced by his ability to obtain a passport and travel in and out of India repeatedly. The delegate's decision noted country information to the effect that the authorities in the state of Tamil Nadu had all but stamped out the threat of terrorism in that state by June 1999 (court book 54) and that the airport police cannot be bribed (court book 55). The delegate noted that the applicant left India six weeks after the attack on the parliament and concluded the applicant had not been suspended in connection with that attack or in connection with any Muslim activities.

11. In his application to the RRT the applicant said that the delegate accepted that the authorities suspected him of involvement in Al-Ummah and falsely charged him. It is noted, and I accept, in the respondent's submissions that that is not entirely accurate as the delegate had accepted that the applicant may have been charged with a minor offence relating to making a financial contribution to Al-Ummah, but said nothing about whether any such charge was false. The applicant also said that it was not correct that Muslim extremism in Tamil Nadu had been crushed and that Muslim-Hindu violence was increasing.

12. It is common ground that at the tribunal hearing the applicant gave evidence in relation to the following which have been adequately set out in the respondent's facts and contentions:

a) That a friend introduced him to Hyder Ali.

b) That Hyder Ali claimed to be running a Muslim education organisation and to be raising money for it. The applicant was told by someone else that Hyder Ali was helping the poorer off and was involved in an orphanage.

c) That Hyder Ali was arrested on terrorist charges and the police then began to search for the applicant.

d) That he could not recall when Hyder Ali was arrested, but he was in custody when the police looked for the applicant in August 2001.

e) That the applicant was away when the police arrived, but they told his wife they were looking for him and they suspected him of helping Al-Ummah.

f) That the applicant went into hiding because he feared the police would torture him.

g) That he applied for a visa in November 2001.

h) That the Indian parliament was attacked on 13 December 2001.

i) That the police looked for him again, but he was not at home.

j) That he left India in January 2002.

k) When asked why the police suspected him of being involved with Al-Ummah that the police had misinterpreted the money that he had given to assist an orphanage.

l) When asked how he knew the money he had donated was given to a terrorist organisation, that Hyder Ali had been arrested and gave the police a list of names which included the applicant's name.

m) That he had Hyder Ali on one occasion but had not known he was a terrorist.

n) When asked why he had not told the police the true circumstances of his dealings with Al-Ummah that he thought the police would torture him.

o) That the police first searched for him two years before he arrived in Australia, that is, in or about January 2000.

p) When it was put that he was travelling in and out of India on business when he claimed the police were searching for him, that no-one knew he was travelling in and out of India and that the police had not checked his passport.

q) When it was put that he would not have returned to India if he had genuinely feared that the Indian would harm him, that he had been afraid to return to India.

r) When he was asked about the charge sheets that he had said in his application that he would provide, that no-one in India could trace them and send them.

s) When asked how he knew that he had been charged, that he had heard some friends saying that he had been charged while he was walking along the street.

t) When asked why his brothers or wife were unable to get the charge sheets, that they were afraid.

The Tribunal's decision

13. The RRT found the applicant was not a credible witness. Specifically, it is useful to set out in this decision the brief findings and reasons given by the RRT to which both parties referred during the course of submissions and which, in my view, are relevant in determining the application before the court. The findings and reasons of the RRT are as follows:

FINDINGS AND REASONS

The tribunal finds that the applicant was not a credible witness. His evidence at the tribunal hearing was vague, inconsistent, implausible and evasive in significant respects.

The tribunal found it implausible that the applicant would not have told the police the truth about his unwitting association with Al-Ummah, particularly given that he had only met Iman Ali once and given that he had intended to donate money to an orphanage rather than fund a terrorist organisation. When asked why he did not tell the police the truth about his association with Al-Ummah it appeared to the tribunal that the applicant responded evasively in saying that he feared the respondent would torture him.

At the hearing the applicant initially represented that the police first searched for him in August 2001 because they suspected he was associated with Al-Ummah. Later in the hearing he represented that the police had searched for him for that reason in or about January 2000. When his earlier evidence in this respect was drawn to his attention he confirmed that the police had searched for him for that reason in August 2001 and in about January 2000. Given that evidence, the tribunal found it incongruous that he had travelled overseas and returned to India on four or five occasions after the police first accused him of supporting Al-Ummah. When this was put to him a comment at the hearing he simply said that he had been afraid to return to India on those occasions. The tribunal found the applicant's attitude towards returning to India after (about) January 2000 to be inconsistent with his claim to have feared being persecuted in India between January 2000 and the date that he departed India for Australia.

In an effort to substantiate the applicant's claim that he had been the subject of criminal charges for political or religious reasons, the tribunal questioned him at the hearing about his statement to the delegate that copies of police charge sheets would be forthcoming. His response to this questioning was so vague as to suggest that he had not been the subject of criminal charges for any reason. When asked how he knew he had been charged he responded in a manner that suggested he was fabricating evidence as he was going along; that he had been walking along a street and encountered friends who told him that he had been charged. Further, when asked why his close family members could not have obtained copies of the relevant documents to assist the application for asylum in Australia he tersely and without explanation replied that they were afraid.

Given the tribunal's observations at the hearing, it does not accept that the applicant contributed money to Al-Ummah intentionally or unwittingly, nor does it accept that the Tamil Nadu or Indian police suspected he was a supporter of Al-Ummah; charged him under the Unlawful Activities (Prevention) Act 1967; searched for him after the Indian parliament was attacked in December 2001; attended his home in August 2001 and told his wife that he was suspected of, or that they knew him to be, assisting Al-Ummah; or attended his home in about January 2000 and told his wife they suspected him of, or that they knew him to be, assisting Al-Ummah. It does not accept that Iman Ali gave the Tamil Nadu or Indian police the applicant's name when he was arrested.

The tribunal does not accept that the applicant has been of adverse interest to the Tamil Nadu or Indian police in connection with Al-Ummah or the attack on the Indian parliament in December 2001. Therefore, the tribunal does not accept that the applicant genuinely fears he will be persecuted by the Tamil Nadu or Indian police on the basis that he has been perceived to be associated with Al-Ummah or with the attack on the Indian parliament in December 2001. It follows that the tribunal does not accept that the applicant genuinely fears being persecuted by the Indian authorities for reasons of religion or (imputed) political opinion.

Accordingly, the tribunal is not satisfied the applicant has a well-founded fear of being persecuted by the Indian authorities for reasons or religion or (imputed) political opinion.

CONCLUSION

Having considered the evidence as a whole, the tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the applicant does not satisfy the criterion set out in section 36(2) of the act for a protection visa.

14. In support of the application the applicant had submitted that in this case the major concern for the applicant was that in making a finding of credibility, whilst that may be a finding of fact which would not normally be challenged, it was claimed that in coming to the finding if the finding was the result of what might be described as personal opinion, then that may constitute jurisdictional error. If it was based on evidence, then the finding after discussion of the evidence would likewise not attract a criticism of jurisdictional error. In the present case, however, the evidence which does not disclose any further inquiries in relation to the activities or other details concerning Al-Ummah meant, as I understood the submission, that this finding as to credibility is effectively a personal decision not based on other evidence which should have been explored by the RRT in the discharge of its duties.

15. It was argued that in the present case the failure was to take into account the applicant's claims as set out in the court book at pages 18 to 20, and the finding by the RRT in relation to the activities of Al-Ummah was made upon material before the RRT given by the applicant, rather than the RRT exploring and discussing other facts associated with Al-Ummah which may have been obtained had the RRT bothered to pursue the matter in any detail. It was argued that in the present case the RRT should have pursued other details concerning Al-Ummah, and in particular, the extent and nature of that organisation and whether it might be described as a "ghost organisation" or whether it had what might be described as tentacles that reached far into the society in India. Reliance was placed upon the decision of the court in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs 117 FCR 412 and an extract from that decision at page 419 which quotes with approval a decision of Kirby J as follows:-

"28 Kirby J at [101] and [102] found that the Tribunal had committed an error of law in failing to make findings of fact on the respondent's allegation that she was unable to secure protection of the law and agencies in Pakistan against the serious harm perpetrated against her and that she was a member of a "particular social group" of, at least, one of the kind propounded before the Tribunal. His Honour considered that until such factual findings were made it was impossible for the Tribunal to apply accurately to the facts, the Convention definition which the respondent had invoked. He also considered that the Tribunal had failed to address itself to the essential features of the case which the respondent had presented to establish persecution and to identify herself with a particular social group "in Pakistan". Such a failure represented an impermissible attempt, in his Honour's view, to over-simplify the matter by ignoring essential factual determinations which if decided in particular ways would have brought the respondent within the Convention definition of a refugee.

29 In my view these observations by Kirby J in Khawar apply in the present case...."

16. It was submitted by the respondent that essentially the attack in this instance on the RRT decision is no more than an attack on a finding of fact and a finding which relates to credibility of the applicant. It was further submitted that in the circumstances, as I understand it, the RRT had in fact considered material in relation to Al-Ummah, and I note in passing that a proper reading of the RRT decision clearly indicates that material was considered and the source of that material appeared for the most part to come from either the applicant or from material otherwise before the RRT by way of the delegate's decision and documents and other material.

17. During the course of submissions by the respondent the court was referred to the decision of Hill J in the matter of NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 3

(6 February 2004). In particular, the court was referred in that decision to paragraphs 33 and 34 as follows:

"33 Each of the various matters raised by counsel for the applicant may rightly be said to involve, as counsel said, "minor inconsistencies". Ultimately, the Tribunal had to decide whether it accepted the case which the applicant put before it. This involved the Tribunal in assessing the applicant's credit. While the Tribunal should not be quick to reject an applicant's credit, particularly where there are minor discrepancies, ultimately it is the Tribunal which must assess whether an applicant is telling the truth. Findings of credit involve not merely assessing minor inconsistencies. They involve also assessing credit of an applicant from matters such as body language, manner of answering questions, and the like. As the High Court itself pointed out in the context of an appeal from a single judge, an assessment of credit may involve the fact finders impressions of the witness, even thought the fact finder may make no reference to them: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 per McHugh J with whose judgment Mason CJ, Deane, Dawson and Gaudron JJ agreed. The procedure before the Tribunal differs from that before a court because it is inquisitorial in nature. But the Tribunal in questioning has, like a court, to form a view on the credibility of an applicant in reaching a satisfaction concerning the applicant's claim to be a refugee.

34 The Tribunal has, like a single judge, the advantage of observing the applicant under questioning. A court in an application for judicial review will be cautious indeed in finding that the Tribunal's assessment of an applicant's credit involved an abuse of process by the Tribunal, particularly where that assessment involves the weight which a Tribunal gives to inconsistencies in an applicant's version of the facts. This is so notwithstanding that it would be unsafe for a Tribunal to found a finding of credit or demeanour alone especially where evidence is given through an interpreter."

18. Further, the court was referred to the decision of the High Court in the matter of Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 where in the joint decision of Gummow and Hayne JJ their Honours state the following:

The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way the submission may perhaps assume the proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a convention reason. The tribunal must then decide whether that claim is made out.

19. The court was also referred to the Full Court of the Federal Court decision in the matter of Avesta v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 121. In particular, reference was made to the court's decision which appears at paragraphs 14 and 15 as follows:

"14 In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gleeson CJ and McHugh J at 626-7 referred to observations by Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 which, while dealing with a different question, is apposite to the present question. Lord Brightman said (at 518):

`Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.'

15 Whether a particular matter is inherently improbable can in certain circumstances be obvious, in other circumstances debatable, and, perhaps, in other circumstances just conceivable, but unless a conclusion that a particular matter is inherently improbable is perverse, that is to say is not open to the decision maker, it is not a matter on which the Court should substitute its view."

20. It was argued on behalf of the respondent that in the present case the challenge based upon the ground now relied upon by the applicant effectively is a challenge to a finding of fact on the issue of credit and the court should apply the authorities to which reference has already been made. It was argued by the respondent that in this case the court should note that the RRT had considered the claim as developed by the applicant, namely that he was persecuted by reason of an imputed political belief. The fact that the applicant is a Muslim it was submitted was inextricably tied to his claim that he faced harm for his imputed political opinion as an alleged supporter of a Muslim terrorist group. It was submitted otherwise that there is no obligation on the part of the RRT to further explore in detail other matters concerning the Al-Ummah organisation.

Reasoning

21. In my view, the authorities to which I have referred, and in particular, the decision of McHugh J in the Durairajasingham decision apply to this case. I accept, further, that when dealing with the issue of credit that it is appropriate to apply and adopt what Hill J stated in the decision of NAVQ. On a proper reading of the RRT decision and considering in full its findings and reasons which I have set out in detail earlier in this judgment, I am satisfied that applying the relevant authorities to the issue of jurisdictional error that there is no basis upon which it could be claimed jurisdictional error has occurred in this instance. Essentially, the argument of the applicant would appear to be that the RRT has effectively failed to act in accordance with the proper principles by essentially ignoring relevant material, that is, material which may have related to Al-Ummah.

22. In my view, it is open to the RRT in the circumstances of this application to make an assessment of the applicant's credibility and having found that it has not accepted that the applicant is a credible witness, and furthermore, having significantly found that the applicant's version of events is "implausible", the RRT is not required to embark upon a further detailed inquiry in relation to other matters, including an assessment of the organisation Al-Ummah, particularly in circumstances where the applicant's own claim refers to that as a prescribed organisation which has alleged terrorist links.

23. In the circumstances I can see no error on the part of the RRT in examining the material then before it, and in particular, in reaching a decision as it was entitled to reach regarding the credibility of the applicant. Its findings and reasons in my view clearly state that it was not satisfied in the circumstances that the applicant was a credible witness and it proceeds to give examples of why it found the applicant to be giving evidence which could properly be regarded as implausible. It is not for this court to then further examine in detail those reasons and nor is it appropriate for this court to be critical of the RRT or to find jurisdictional error based upon the claim that it has not pursued in further detail other information which may have been available concerning the Al-Ummah organisation.

24. I am satisfied that the RRT in this instance has dealt with the claim as presented by the applicant, and I am further satisfied from the authorities to which reference has been made by the respondent that there is no jurisdictional error. Accordingly, it follows that the application should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 2 December 2004
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