MZWFZ v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCA 1105

FEDERAL COURT OF AUSTRALIA

MZWFZ v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCA 1105

Federal Court of Australia Act 1976 (Cth): s 24 Judiciary Act 1903 (Cth): s 39B Migration Act 1958 (Cth): ss 36, 424A MZWFZ v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS VID440 OF 2005

JESSUP J

1 August 2006

VICTORIA IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID440 OF 2005

BETWEEN: MZWFZ

Appellant

AND: MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: JESSUP J

DATE OF ORDER: 1 AUGUST 2006

WHERE MADE: VICTORIA

THE COURT ORDERS THAT:

1. The title of the proceeding be amended so as to substitute for the existing title of the respondent the following: Minister for Immigration and Multicultural Affairs. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID440 OF 2005

BETWEEN: MZWFZ

Appellant

AND: MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: JESSUP J

DATE: 1 AUGUST 2006

PLACE: VICTORIA

REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) from a judgment of the Federal Magistrates Court, given on 29 April 2005, upon an application pursuant to section 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Refugee Review Tribunal made on 2 April 2004, affirming the decision of the delegate of the respondent to this appeal that the appellant is not a refugee, and is not entitled to a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 According to the reasons for judgment of the learned Magistrate below, the appellant entered Australia on a temporary business visa on 9 March 2003. He was travelling on a valid Indian passport issued in his own name. On 20 March 2003, he applied for a protection visa under the Act. That application was refused by a delegate of the respondent on 22 May 2003, and the appellant sought review of that refusal in the Tribunal. The Tribunal conducted a hearing, at which the appellant gave oral evidence, assisted by an interpreter. 3 The Tribunal ultimately affirmed the decision to refuse the appellant a protection visa, and the appellant challenged that affirmation in judicial review proceedings in the Federal Magistrates Court. I understand that the appellant was assisted by an interpreter in the Federal Magistrates Court, as he had been in the Tribunal. When he appeared before me today it had not been possible to arrange for the assistance of an interpreter. I enquired of the appellant whether, in the circumstances, he wished to conduct the case himself, and he said that he did. I satisfied myself by questions addressed to him that he understood the nature of the case which he was putting to me, and the nature of the opposition which he received from the submissions made by Ms Moore on behalf of the respondent. 4 The two main propositions upon which the appellant relied before the Tribunal were, first, that he feared repercussions from a group in India called the Naxalites in relation to what had apparently been a period of time during which he was believed to have been a police informer against that group; and secondly, that he, as a Hindu, felt threatened by people of Muslim faith in the environment in which he lived in India. 5 As to the first of these propositions, the Tribunal said that it was not satisfied that the appellant's account, or even the basic premises of his claims, were a true reflection of reality. Neither was it satisfied that any fear which the appellant had apropos the Naxalites was for a Convention-related reason, which would have made it relevant under s 36 of the Act. As to the second aspect, the Tribunal recognised that there were, from time to time in India, tensions between the Muslims and the Hindus, which occasionally resulted in violence and deaths. However, it noted that the appellant had not indicated that he had ever suffered any harm arising out of such tensions, albeit that he lived in a Muslim neighbourhood. The Tribunal added that the appellant appeared to have been living at the same address since 1976, and that his fear of Muslims was expressed in the vaguest and most general terms. Substantially based on these findings, the Tribunal affirmed the decision of the delegate not to grant a protection visa. 6 The appellant's originating application in the Federal Magistrates Court, dated 3 May 2004, scarcely gives the reader any indication as to what was the actual jurisdictional error, the existence of which was necessary for that application to have any prospect of success. The application states as a series of grounds that the decision of the Tribunal was made without jurisdiction, was affected by error of law, was unreasonable, took into account irrelevant considerations, failed to take relevant considerations into account, and was in breach of natural justice. Although there is no printed transcript of the proceedings before the Magistrate, it appears from her judgment of 29 April 2005 that the appellant conducted his case in that Court substantially by way of an attempt to agitate the various factual and discretionary judgments which the Tribunal had been obliged to make. 7 In par 10 of her reasons, the Magistrate said: "In essence the applicant wishes to challenge the merits of the Tribunal's decision which is not open to this court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291). The Tribunal made findings of fact uniquely within its jurisdiction and such findings of fact were supported by probative material before it. The Tribunal's conclusion that the applicant's claims disclose no Convention nexus was open to it on the evidence before it and discloses no error of law, let alone jurisdictional error. I accept the respondent's submission that the applicant has demonstrated no proper basis for criticism of the process adopted by the Tribunal or its decision. Accordingly the application should be dismissed with costs." 8 From that dismissal, the appellant's appeal in this Court relies upon the following grounds, each of which is stated to be an error of law constituting jurisdictional error: (a) The Federal Magistrate should have found that both these findings did not have the necessary evidentiary basis, and as a consequence, the decision of the Tribunal was without jurisdiction. (b) The Federal Magistrate erred in finding that the errors in the fact-finding process of the Tribunal did not amount to failure to exercise jurisdiction and/or that other findings in the decision overcame the decision's shortcomings. (c) The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction, or failed to exercise jurisdiction. It is not entirely clear in the Notice of Appeal, but I take it that the reference in the first of these grounds to 'both these findings' is a reference back to the two bases of decision by the Tribunal, to which I have referred above, that is to say, one concerning the Naxalites and the other concerning the tensions between Muslims and Hindus. 9 The appellant filed contentions of fact and law in this appeal. In those contentions, he said that he disagreed with the decision of the Magistrate on the grounds that there was an error of law in that decision, which constituted jurisdictional error, and that the Magistrate erred in finding that the errors in the fact-finding process on the part of the Tribunal did not amount to a failure to exercise jurisdiction, and/or that other findings in the decision overcame the decision's shortcomings. Furthermore, according to the appellant, the Magistrate should have found that the Tribunal made an error going to jurisdiction, or failed to exercise jurisdiction. The appellant's contentions next concern themselves with points of factual detail about the Naxalites on the one hand, and the tensions between Hindus and Muslims on the other. Finally, the contentions assert that the Magistrate should have held that the tensions referred to were not 'just a fact of life' (which was the way they were described by the Tribunal), and should have held that there was a chance that the appellant would be harmed for reasons of his religion. The contentions conclude with the assertion that the Magistrate should have held that the appellant belonged to a particular group, namely people who were persecuted by the Naxalites. 10 I have set out in some detail the way in which this case has been conducted by, or on behalf of, the appellant, at both previous stages of his application, and in this Court, because he substantially changed the basis of his challenge to the Tribunal's decision when he appeared before me this morning. I shall presently come to the way he now puts his case, but before doing so, I should record that nothing which has been put to me this morning would give me any reason to find error in the way the learned Magistrate dealt with the application for review which was before her. I have no reason to doubt her description of the nature of the challenge which was advanced by the appellant, as set out in par 10 of her reasons, and it is clear beyond argument that that challenge does not articulate any legitimate basis upon which she might have found, or upon which I might now find, jurisdictional error by the Tribunal. Therefore, if it were for the material contained in the documents to which I have just referred, I would dismiss the appeal. 11 Before coming to the new points raised by the appellant, I should mention one matter which has been drawn to my attention by Ms Moore. In par 9 of the learned Magistrate's reasons, she refers to an observation, which was made by the Tribunal, concerning certain apparent inconsistencies between information contained in the appellant's business visa application (it being recalled that he came to Australia on a temporary business visa), and his protection visa application, which was dealt with by the Tribunal. Although the appellant takes no point in this regard, Ms Moore quite properly drew my attention to a possible respect in which it might, on one view, be contended that the Tribunal did not comply with s 424A of the Act in relation to these inconsistencies. I am, of course, satisfied that there was in substance no lack of procedural fairness in the way that the Tribunal dealt with this matter since it raised the inconsistencies with the appellant during the hearing before it. However, Ms Moore pointed out that the Tribunal's concerns as to the inconsistencies, if there were any, were not given to the appellant in writing. Ms Moore's submission was that there could not be a contravention of s 424A in the circumstances because the particular inconsistencies referred to were not on any view the reason, or part of the reason, for which the Tribunal affirmed the decision under review and were not, therefore, covered by par (a) of s 424A(1) of the Act. My reading of the Tribunal's reasons leads me to accept that submission. I do not consider that there is any credible basis upon which it might be said that the passing observation which the Tribunal made about inconsistencies between the different categories of visa application found its way into its reasons within the meaning of s 424A in relation to its ultimate decision. 12 I turn then, to the way the appellant put his case before the Court today. He said that he was not satisfied with the decision of the Tribunal and the Magistrates Court. He said that the Tribunal did not assess his case properly, and that it had made a decision against him.He said that it failed to apply the definition of 'refugee' in the Act and the Convention, and that it had refused his application for a protection visa as a result. He said that the decision was affected by a mistake of law. The particular mistake upon which he relied, and which he asserted constituted a breach of natural justice, was that the member constituting the Tribunal adopted the practice of asking the appellant a question and then, before he had finished answering the question, of asking him a further question. When this was done several times, according to the appellant, he was not fairly able to conduct his case before the Tribunal as he chose. 13 Turning to the appeal from the Federal Magistrates Court, I am of course entitled to interfere with the learned Magistrate's judgment only if I am satisfied that error has been shown. This is not an appeal de novo. The appellant advanced an argument before me which, if correct, would amount to a very substantial error on the part of the Magistrate. The appellant submitted that the Magistrate had considered only the arguments advanced on behalf of the respondent Minister and had not given any weight to the submissions advanced by the appellant himself. The appellant said that he believed that the decision of the Magistrate was biased. If correct, this would certainly be an obvious basis upon which that decision should be quashed. 14 The appellant asked me to uphold the appeal and send his application back to the Tribunal to be re-heard by a different member. 15 I asked the appellant whether the basis upon which he now challenges the decision of the Tribunal was argued by him before the Magistrate, and he said that it was. Ms Moore, on behalf of the respondent Minister, submitted to the contrary. Although there is no transcript of the proceedings before the Magistrate, she pointed out that the allegation that the Tribunal member had constantly interrupted the appellant during the course of his attempt to answer questions did not find expression in his application, or in his amended application, in the Federal Magistrates Court, in his Notice of Appeal in this Court, or in his contentions. It was therefore, she submitted, unlikely in the extreme that the argument was advanced before the Magistrate, an unlikelihood which is confirmed when one reads the reasons of the Magistrate herself, and finds no reference to that argument. I am faced with a situation in which I take it that the appellant would seek leave to rely upon different grounds of appeal from those which are expressed in his Notice of Appeal, and also from those which find any support in his contentions, as filed in this case. I am not persuaded that I should grant such leave. 16 With respect to the appellant's attempt now to persuade me that the argument about the proclivity of the Tribunal to interrupt him was in fact put to the Magistrate, the respondent would, in my estimation, suffer a very considerable prejudice in not being able to rely upon the transcribed proceedings of the hearing before the Magistrate. Likewise, with respect to any substantive consideration of that point, the respondent has not had the opportunity to cause to be printed a transcript before the Tribunal itself. In these circumstances it seems that it would be quite wrong for me to attempt to make a factual assessment of whether the appellant's points were properly raised before the Magistrate. 17 As to the matter of bias, this again is not expressed in any of the documents filed in this proceeding. It is a serious allegation and if it was to be made by the appellant, it was for the appellant to support it by evidence in this appeal. I appreciate, of course, that the appellant is not legally represented and I would be prepared to make an allowance for that circumstance. However, there is a point beyond which allowances of that kind cannot be taken, and in my view, that point is well and truly reached when an allegation of this kind is made. I certainly do not propose to act upon nothing more than the submissions of the appellant, made from the bar table as they were, when if the matter had been properly dealt with, the respondent might have been able to put before me a transcript of the hearing before the Magistrate. 18 For the above reasons, I have formed the opinion that this appeal should be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.