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MIGRATION - Refugee Review Tribunal - protection visa - court role - not appropriate to make a decision on merit or finding as to character of applicant.

VTAH v Minister for Immigration [2004] FMCA 593 (23 August 2004)

VTAH v Minister for Immigration [2004] FMCA 593 (23 August 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VTAH v MINISTER FOR IMMIGRATION
[2004] FMCA 593



MIGRATION - Refugee Review Tribunal - protection visa - court role - not appropriate to make a decision on merit or finding as to character of applicant.



Migration Act 1958, s.474

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:
VTAH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 1114 of 2003



Delivered on:


23 August 2004



Delivered at:


Melbourne



Hearing Date:


23 August 2004



Judgment of:


McInnis FM



REPRESENTATION

Applicant:


In person



Counsel for the Respondent:


Mr E.J.C. Heerey



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application filed 12 September 2003 be dismissed.

(2) The applicant shall pay the respondent's costs fixed in the sum of $4500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 1114 of 2003

VTAH


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. In this application the applicant seeks judicial review of a decision made by the Refugee Review Tribunal (the RRT) delivered on

7 August 2003. The application to this court had originally been filed in the Federal Court on 12 September 2003 and was then transferred by that court to the Federal Magistrates Court on 9 October 2003.

2. The applicant before the court this day is unrepresented, although assisted by an interpreter. In his application the applicant seeks orders quashing or setting aside the RRT decision and provides that the grounds of the application are as follows:

"In affirming the decision of a delegate of the respondent not to grant the applicant a protection visa (class XA), the tribunal constructively failed to exercise its jurisdiction."

3. The applicant in submissions to the court has identified what

I would describe as a critical or threshold issue in this application, namely, a finding by the RRT that the applicant was not a member of the CTP Socialist Party (the CTP). In addition, the applicant has raised other matters which I take relate more to his conduct and that of his family since arriving in Australia and otherwise raises issues concerning his character and ability to continue to remain as part of the community in this country.

4. Those matters, whilst no doubt important to the applicant, are not relevant in this application to the extent that I do not make a finding in this case as to the applicant's character or indeed as to the progress or otherwise of his family in this country. It is not the role of this court to analyse that material and nothing in the findings that I make in relation to this matter should be taken by the applicant to in any way reflect upon either him or his family in terms of their character or honesty.

5. I mention that in passing because again it indicates, as in many of these cases, a fundamental misunderstanding of the role of the court in judicial review, particularly where applicants are unrepresented and have not got a complete understanding of the process. It is not for this court to undertake merit review or to revisit facts found by the RRT which it may be said to be facts found and reasonably open to be found by the RRT.

6. By way of background I rely upon the respondent's contentions of fact and law adopted by counsel before me this day who further submitted that essentially it was the membership of the CTP that was a critical element in this applicant's claim before the RRT. The background is that the applicant is a 41-year-old of Turkish Cypriot ethnicity and of Muslim faith. He is married and has three children. Prior to travelling to Australia the applicant and his wife and children resided in the northern part of Cyprus controlled by Turkey.

7. The applicant claims he holds citizenship of Turkey. He and his wife hold two passports, one issued by Turkey and another issued by the Turkish Republic of Northern Cyprus (TRNC). The TRNC is not recognised as an independent state by any international government, except Turkey. The applicant's children travelled on the applicant's wife's passport. The applicant arrived in Australia with his wife and children on 12 March 2001. They applied for refugee visas on 10 April 2001. Those claims of the applicant wife and children depended entirely on the applicant's claim. As I have indicated, an essential element of that claim for refugee status was that the applicant feared persecution by the Turkish police and armed forces resulting from claimed membership and active involvement in the CTP since 1990.

8. He further claimed he was a member of a secret organisation called Halk Der. Later at the hearing before the RRT he claimed he was not a member of that organisation. He claimed that the aim of his activities was to reunite Cyprus and to rid it of the army and generally to oppose the Denktash regime in northern Cyprus. He claims that he had been jailed several times.

9. A delegate of the respondent refused the applicant's application on 17 July 2001 and the applicant on 24 July 2001 then appealed that decision to the RRT which, as I have indicated, affirmed the delegate's decision by a decision made on 7 August 2003.

10. It is submitted on behalf of the respondent that having regard to the grounds of the application to which reference was made earlier, and in the absence of any contentions of fact and law, or indeed other particularisation of the applicant's grounds for review, there is no basis upon which this court can undertake judicial review of the RRT decision.

11. 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."

12. 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]."

13. 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."

14. 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."

15. It is contended on behalf of the respondent that unless there is some jurisdictional error or breach of natural justice or procedural fairness found in the RRT's decision, then no question arises as to whether S157 denies the operation of s.474 of the Migration Act 1958 to the RRT decision as a privative clause decision.

16. Other authorities are referred to in the respondent's submissions which although relevant are not necessary to recite in this judgment. It is sufficient to note the reference to the principles since S157 referred to earlier in this decision. It is appropriate in considering whether there is jurisdictional error of a kind which would attract judicial review to consider the tribunal's decision and to carefully look at the basis upon which it reached its findings and reasons.

17. During the course of the hearing I accept, as submitted by the respondent, that the RRT and the applicant discussed information that the CTP was a member of the coalition government from 1990 to 1996. That discussion, or at least an extract from it, is accurately recorded in the submissions from the respondent and is found at page 72 of the court book as follows:-

"The Tribunal said that according to its information, the CTP was a member of the coalition government from 1990 to 1996. The applicant said that the CTP's participation in the coalition was not popular with some sectors of the Party. The applicant said he was sympathetic to that view. He said that the CTP now only had 6 seats in Parliament; this in itself was a persecution of the Party. The Tribunal noted the applicant had not responded to the Tribunal's observation that the CTP was a Party of Government over a period of years in which the applicant claimed to have been persecuted by the authorities for being a member of the CTP. His inability to grapple with his problem cast doubt not only on his claimed persecution but also on his claimed political involvement."

18. In its findings and reasons the RRT significantly states the following:

"Based on the country information and the information in his protection visa application, the Tribunal finds that the applicant is a citizen of Cyprus, who lives in Cyprus, in particular Northern Cyprus.

The Tribunal does not accept that the applicant faces a real chance of persecution in Northern Cyprus for reasons of his political opinion.

The Tribunal does not accept that the applicant is a member of the CTP, let alone an active member. Someone who was a member of the CTP would not make the mistake of claiming that they were persecuted by the authorities (specifically the military and police, which are agents of the TRNC `government') in the first half of the 90s, when the CTP was, however uncomfortably, a governing party.

The applicant said that he took party in activities against the regime as a member of the CTP. As the Tribunal does not accept that the applicant was a member of the CTP it does not accept that the applicant participated in protest activity against the regime including bi-communal activities."

19. The RRT goes on to state the following:

"It follows from the foregoing findings that the Tribunal does not accept that the applicant was ever detained, or questioned, or was under surveillance or otherwise harassed, for being a member of the CTP, or for any other expression of his political opinion. It does not accept that the applicant's friend was shot dead as claimed. These findings are reinforced by the fact that the applicant's claim of being systematically persecuted in those ways is starkly at odds with the country information."

20. The RRT then goes on to discuss the country information and otherwise refers to its findings being reinforced by the applicant's own evidence that he took virtually no steps at all to defend himself or to assert his rights not to be persecuted in his own country even though legal and other avenues are, according to country information, clearly available.

21. It reaches the following conclusion:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the first-named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee Protocol. Therefore the first-named applicant does not satisfy the criteria set out in s.36(2) of the Act for a protection visa."

22. It is clear to me on a proper reading of the RRT's findings that the issue of the applicant's membership with the CTP was properly agitated, considered and decided. The findings of fact by the RRT, in my view, are findings of fact reasonably open to it. I cannot see on the material before me any basis upon which this court should undertake judicial review of that decision in a way which would result in an outcome favourable to the applicant. I cannot see any jurisdictional error. I cannot see any basis upon which it could be claimed that there has been a denial of natural justice or of procedural fairness.

23. The findings of fact by the RRT were findings, as I have indicated, which in my view on a proper reading of the material were reasonably open to it at the time. In the circumstances, whilst concern is expressed by the applicant as to how the RRT may have reached its decision that he was not a member of the CTP, that really invites the court to reconsider the matter as a merit review or indeed fresh fact-finding mission. That is not the role of the court in a judicial review. In the circumstances, having regard to the findings and the reasons set out in this judgment, it would follow that the application should be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 August 2004
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