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MIGRATION - Protection visa - no jurisdictional error - application dismissed.

VRAB v Minister for Immigration [2004] FMCA 622 (9 September 2004)

VRAB v Minister for Immigration [2004] FMCA 622 (9 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VRAB v MINISTER FOR IMMIGRATION
[2004] FMCA 622



MIGRATION - Protection visa - no jurisdictional error - application dismissed.



Migration Act 1958, s.424

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:
VRAB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MLG 1245 of 2003



Delivered on:


9 September 2004



Delivered at:


Melbourne



Hearing Date:


9 September 2004



Judgment of:


McInnis FM



REPRESENTATION

Solicitor for the Applicant:


Mr J. Belbruno



Counsel for the Respondent:


Ms J.K. Macdonnell



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application as amended be dismissed.

(2) The applicant pay the respondent's costs fixed in the sum of $6000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 1245 of 2003

VRAB


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an amended application for an order to review a decision of the Refugee Review Tribunal (the RRT) which had affirmed a delegate's decision to refuse to grant to the applicant a protection visa. The application for review which was the subject of an amendment filed 22 October 2003 provided the grounds which included in ground 1(a) claim that there had been a breach of s.424A of the Migration Act -

" ... inter alia, the Tribunal did not give the Applicant an opportunity to comment on information regarding

(i) a statement dated 2 June 2000,

(ii) a statement filed against the applicant (an FIR) and the lack of evidence in support of its veridicity or existence,

(iii) statements made by the applicant with regard to his belonging to a political party, his escape from a hospital whilst under police guard.

2. The Tribunal erred in law or exceeded its jurisdiction in that, inter alia,

(a) it determined that

(i) the Pakistani government does not discriminate between Sunhi and Shia communities,

(ii) even allowing (i), the government does not nevertheless discriminate against either community or against them equally."

2. At the hearing the applicant was granted leave to further amend the application by inserting the following "or (iii) is able to protect the Shiite community" and then part (b) of ground 2 is:

It did not make further inquiries as to the truth of statements by the applicant and the existence or less of documents referred to by the applicant.

3. Both parties have relied upon the statement of facts and contentions. It is convenient by way of background to note the following. The applicant is a Pakistani national who arrived in Australia with his wife and two sons on 1 June 2001 on tourist visas. On 16 July 2001 he applied for a protection visa. The applicant's wife and sons were included as members of the family unit.

4. The court book reveals that the applicant has relied upon various documents in support of his application. On 7 November 2001 a delegate of the respondent refused to grant the visa and on 11 December 2001 the applicant lodged an application with the RRT for review of the decision to refuse the visa. As I indicated earlier, that decision was affirmed by the RRT on 18 July 2003. The application in this court was filed on 25 July 2003. It is not necessary for me to refer to the relevant law as that has been referred to in the outline of submissions and also in the RRT decision in this instance.

5. It is clear that the detail of the applicant's claim has been set out thoroughly by the RRT member. In brief terms, the RRT refers at page 146 of the court book to the relevant background material. The applicants are Shiite Muslim and that they are in a minority in Pakistan whilst the Sundhi Muslims are in the majority. The Applicant worked in Karachi for a Thai based Japanese company and had travelled to Thailand. He is a member of the party Turique Jafria and that on 18 April 2001 there was a strike in Karachi. On the same day there were two bomb blasts which killed three persons and injured many. A rival party, Sibosen Harbour, blamed Turique Jafria for the bomb blasts and filed a case against the members, including the applicant. On 21 April 2001 the applicant went to Thailand and learned that he was involved in the bomb blast case. On his return to Karachi, police arrested him at his home and took him to court where he remained. He was remanded for three days for investigation.

6. The police investigators were Sundhi Muslims and it is claimed the applicant was tortured physically and mentally, forced to confess that he was involved in the bombing and to sign papers. It is claimed his party bailed him out of court and helped him to escape from Pakistan on 26 May 2001. The police reported his confession and the court is prosecuting the bomb blast case. It is claimed that he fears that he faced the death penalty or life imprisonment upon return. Further claims are set out in detail. The RRT clearly had considered a written statement made by the applicant and it is not necessary for me to set out in further detail that material.

7. It is clear that the RRT otherwise considered further material before it. I should pause at this stage to indicate that in its conclusions at page 168 a critical finding was that the RRT did not accept the applicant to be a credible witness. It states:-

"As the Tribunal has not accepted that the applicant was an official of the TJP, or that he was a leading Shia as to be targeted by the SSP, it does not accept that it was targeted by the SSP or that an FIR was issued against him. It does not accept that he was arrested, bailed out, taken to hospital and escaped in the way he claims. It does not accept that he took part in the strike on behalf of the TJP where the bomb blasts occurred. The Tribunal does not accept that there is an FIR issued against him or that there is a Warrant for his arrest, for the reasons set out above. It does not accept that he was an active member of the Shia organisation, the TJP. It does not accept that he was a member of that organization. The Tribunal is not satisfied that the applicant was an active, well known or important TJP member or supporter. The Tribunal does not accept that the police mistreated him. It does not accept that the SPP sought to harm him because of his alleged activities for the TJP.

For all of the above reasons the Tribunal does not accept that the applicant was targeted by the Sunnis, and in particular by the SSP. IT does not accept that he is of interest to the SPP such as to have attracted their adverse interest in the past or that he would do so in the future.

For all of the above reasons that Tribunal finds that the applicant is not credible."

8. Specifically, it also found after reviewing material that it did not accept the applicant was targeted by the Sundhis and in particular by the SSP. It did not accept that he is of interest to the SSP such as to have attracted their adverse interest in the past or that he would do so in the future.

9. Having considered the RRT decision, there are a number of observations that one can make about the reasons. The first by way of a general observation is that in this instance it seems to me that the RRT has undertaken what I could describe as a comprehensive and thorough analysis of the material before it and has presented appropriate reasons for the decision based upon that comprehensive and thorough analysis. It considered and discussed country information. It considered and discussed what it perceived to be inconsistencies in the applicant's evidence. It put to the applicant difficulties it had with the evidence. It asked the applicant and gave the applicant opportunity to comment on any further matters or to provide any further information. It heard the evidence of the witness on behalf of the applicant and again invited the applicant to comment on the evidence of the witnesses. Ultimately it found, as I have indicated, that it was not satisfied that the applicant was a credible witness.

10. Having found that the Applicant was a witness without credibility who did not face a real prospect of persecution it was unnecessary for the RRT to then make a finding as to whether or not he would be protected upon return. The level of protection provided by a government so long as it is not discrimination will not provide a basis for judicial review in an application of this kind and nor would it provide a basis upon which the RRT could properly find that the protection visa should be issued for convention reasons. The standard of protection in various countries throughout the world varies significantly and the real issue dealt with appropriately by the RRT was whether or not protection afforded in Pakistan was afforded in a way that could be regarded as discriminatory. Having already found the Applicant was not subject to discrimination on grounds reasonably open it, it was unnecessary and of no practical consequence for the tribunal to then proceed to consider the issue of protection in any event.

11. It is not necessary for me to recite in detail each and every aspect of the analysis of the RRT which led it to that conclusion, save to say that on the face of the material before me I can see no basis upon which it could be claimed that there is a jurisdictional error of a kind that would attract judicial review. It seems to me on a proper reading of the reasons and having regard to the material on the basis of the claim before this court, there could not be any suggestion from this particular application that the RRT has failed to consider any matter or has undertaken its task in anything other than a proper manner.

12. In those circumstances, noting further its reference specifically to relevant documentation, I am further satisfied and accept the submissions made for and on behalf of the respondent that there has not been any breach of s.424A of the Migration Act. It is clear to me that the RRT properly considered, as I indicated earlier, correspondence and country information and dealt with that information in an appropriate manner. I cannot see any information or particulars of which in this case had to be given to the applicant by the tribunal and it seems to me that in the present application one could conclude to the contrary, that all the relevant issues including challenges to the credit of the applicant were very much agitated by the RRT in this instance.

13. Whilst in matters of this kind it is often the case for the court to refer to the principles which apply to judicial review, I will do no more in the present case than to incorporate reference to the principles which I perceive to be applicable following S157.

14. 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."

15. 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]."

16. 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."

17. 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."

18. Beyond referring to the general principles, I do not see it necessary in this case, having regard to my observations previously in this judgment, to otherwise state anything further than that I am not satisfied there is any proper basis demonstrated in this application upon which this court could undertake judicial review of this RRT decision,

19. For those reasons it follows the application should be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 September 2004
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