FEDERAL COURT OF AUSTRALIA

MZWJM v Minister for Immigration and Multicultural Affairs [2006] FCA 893

MIGRATION – no basis for jurisdictional error raised

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal in (2002) 190 ALR 601 referred to

S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872 referred to

NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 cited

W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 cited

MZWJM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 596 of 2005

KENNY J

11 JULY 2006

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of a Federal Magistrate made on 1 June 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 June 2001 and handed down on 17 July 2001. In that decision the Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection visa. The appellant is self-represented and presently resident in New South Wales.

2                     The appellant is a citizen of India. He first arrived in Australia on 9 July 1999 on a student visa. On 3 August 1999, the appellant applied for a protection visa. In his application, he said he was a Sikh. He claimed that, in October 1998, Sikh militants commandeered a bus he was driving. He said that, soon thereafter, his brother and his father were taken into police custody, and later he was too. He claimed that he surrendered to the police who held him for two months and tortured him. The appellant said that he was only released after his family paid a bribe. After his release, he tried to acquire a passport. He claimed that as an accused militant it would have been very difficult to get a passport in his real name. The appellant claimed that in February 1999, while he was trying to get a passport, he was detained and tortured again by the police. According to the appellant, his parents sold his bus to pay a second bribe. He said that, after his release, he travelled to Utter Pradesh to hide from the Punjab police until he was able to travel to Australia.

3                     A delegate of the first respondent refused the appellant’s protection visa application on 7 December 1999. The appellant applied to the Refugee Review Tribunal (the “Tribunal”) for a review of this decision. At the hearing before the Tribunal, the appellant repeated the claims he had made in his application for a protection visa. He also submitted a faxed copy of an arrest warrant in his name dated 19 April 2001 stating that he was charged with the offence of “212/216” of the Indian Penal Code (which relates to the harbouring of offenders). The appellant said that he would try to procure an original of the warrant and that he did not object to the Tribunal taking steps to verify the genuineness of the warrant. The appellant also supplied the Tribunal with a faxed copy of an affidavit from the head of his village, as well as from his father, stating that he had some criminal cases in the law courts pending against him and that the police had unlawfully detained his father and he for some days. The appellant also gave the Tribunal a letter from an advocate.

4                     The appellant also claimed that he had medical problems with his eye as a result of the abuse he had suffered in India. The appellant claimed to have had an operation in India in 1998. The Tribunal, with the consent of the applicant, called the appellant’s Australian doctor during the hearing. The appellant’s doctor told the Tribunal that the appellant had never mentioned that his eye problem was related to abuse. The doctor said that the appellant has told him that he thought that chemicals were affecting his eye as a result of his working as an agricultural labourer. The doctor also said that the appellant had told him that he had an operation on 1996. The appellant told the Tribunal that his doctor was incorrect and that he had mentioned that he had been assaulted by the police. He also suggested that his friend, who had been translating for him, may have incorrectly told the doctor his operation had been in 1996 instead of 1998.

5                     The Tribunal ultimately affirmed the decision of the delegate. The Tribunal referred to country information that indicated that militant activity in Punjab had largely ceased by 1998. The Tribunal found that, in light of that evidence, it was implausible that the appellant was involved in the alleged incidents. The Tribunal accepted that the appellant had, on at least one occasion, been in police custody but it did not find that this had been in connection with alleged militant activity or any other Convention reason. The Tribunal found it implausible that, if the appellant had been in custody in connection with the serious charges named in the warrant, he would have been released twice upon the payment of a bribe.

6                     The Tribunal also found that the purported warrant was a fabrication. It noted that the warrant was purportedly issued nearly two years after the appellant had left India, and it saw “no plausible reason why it might be issued such a long period after any events that might have given rise to its being issued.” The Tribunal also found that “the statements by the village headman, the applicant’s father, and the applicant’s lawyer, referring to the warrant have been produced either to strengthen the perception of the Tribunal that the warrant is valid, or because they have been duped into believing that the warrant is valid”. The Tribunal added that should the appellant “still feel it unsafe for him to return to the Punjab” he could return to Uttar Pradesh, alternatively, to another Sikh community in India. It was not satisfied that any minimal involvement on his part since coming to Australia in a particular organisation would come to the authorities’ attention and, if it did, would occasion him any difficulties upon his return to India.

7                     On 17 September 2001, the appellant joined the Muin and Lie proceedings in the High Court: see: see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal in (2002) 190 ALR 601. Ultimately, his application was remitted to the Federal Court and was refused on 30 April 2004: see S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872 per Emmett J. As the first respondent has not sought to rely on those proceedings as the basis of any estoppel argument, it is unnecessary to discuss them further.

8                     On 24 May 2004, the appellant filed an application for judicial review of the Tribunal’s decision, which was heard in the Federal Magistrates Court. In his reasons for judgment, his Honour noted that the appellant had raised two issues in correspondence with the first respondent: first, he asserted that the date of his eye operation was 1998 rather than 1996 and, secondly, that his business activity was 1997 rather than 1995. His Honour held that the application for review did not disclose any basis upon which the Court could conclude that there had been any jurisdictional error on the Tribunal’s part. He held further that the appellant’s claims were no more than “an attempt to re-agitate facts or correct the factual material”. His Honour noted that the Tribunal had spoken with the appellant’s doctor by telephone and that the doctor’s evidence was specific on the point and concluded that “the issues now sought to be reagitated by [him] were properly before the [Tribunal]”, which made “findings of fact reasonably open to it”. In particular, his Honour found that the Tribunal’s decision involved “a clear finding of credibility adverse to” the appellant, and those credibility findings were within the domain of the Tribunal.

9                     The appellant appealed from the Federal Magistrate’s judgment on 17 June 2005 upon the ground that his Honour erred in finding that the Tribunal’s decision was not affected by jurisdictional error. The appellant has given no particulars of this ground of appeal and did not file written submissions prior to the hearing. At the hearing this morning, the appellant submitted that the Tribunal had mistaken the date when he started his bus driving and the date of his eye operation. He further submitted that the Tribunal was wrong to rely on any supposed discrepancy regarding these dates and that he had not been aware that the Tribunal would so rely.

10                  It is plain from a reading of the Tribunal’s reasons that it placed no reliance on the date when he started his bus driving business. The Tribunal relied on the fact that the incident that gave rise to the appellant’s protection visa application occurred in 1998, which the appellant does not dispute. It was open to the Tribunal, on the evidence before it, to make the findings it did concerning the appellant’s eye condition and medical treatment. The appellant did not dispute that he had authorised the Tribunal to speak to his doctor and that he had been invited by the Tribunal to comment on the doctor’s evidence. It is clear from the reasons of the Tribunal and the Federal Magistrate that the submissions he made to the Tribunal concerning the discrepancy in dates were the same submissions he made to the Federal Magistrate and to me. The Tribunal considered these submissions. The authorities establish that credit issues and findings of fact are generally matters for the Tribunal alone: see NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 at [2]; appeal dismissed in [2002] FCAFC 250; also W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64]. The Tribunal is not obliged to explain its thought processes to an applicant before making a decision. There is no discernible error in his Honour’s judgment below.

11                  The first respondent sought the costs of this appeal. The appellant submitted that he was not working and would be unable to pay such costs. The authorities establish that this is not a sufficient reason to depart from the ordinary rule: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 709. Accordingly, I would dismiss the appeal, with costs.

Associate:

Dated: 11 July 2006