BZAAB v Minister for Immigration
[2011] FMCA 174
•14 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAAB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 174 |
| MIGRATION – Review of Refugee Review Tribunal decision. |
| Migration Act 1958 (Cth), ss.36(2), 36(2)(a), 65, 128, 140, 474 Migration Regulations 1994 (Cth) |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 WZAMS v Minister for Immigration and Citizenship [2008] FCA 1352 |
| Applicant: | BZAAB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 484 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 14 February 2011 |
| Date of Last Submission: | 14 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 14 February 2011 |
REPRESENTATION
| The applicant appeared on her own behalf |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed 17 May 2010 be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 484 of 2010
| BZAAB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The applicant applies for review of a decision of the Migration Review Tribunal made 21 April 2010 affirming the delegate’s decision to refuse her a Protection Visa. In her application filed 17 May 2010 the only ground advanced was:
“Mr Bruce MacCarthy (the Tribunal member) made a wrong judgment on my credibility.”
Background
The applicant claims to be a citizen of China born on 17 May 1968 who arrived in Australia on 3 August 2008 as a dependent on her husband’s UC-457 Business Visa. The applicant’s husband and her child voluntarily departed Australia in July 2009. The husband’s visa was cancelled under s.128 of the Migration Act1958 (Cth) on 16 July 2009 and as a consequence of that decision the applicant’s visa was consequentially cancelled under s.140.[1] From 17 July 2009 the applicant remained in Australia as an unlawful non-citizen.
[1] Migration Act 1958 (Cth)
In August 2009 the applicant was apprehended by the Queensland Police during the execution of a search warrant related to the operation and provision of illegal sexual services. A “compliance field interview” was conducted on 19 July 2009 at Brisbane Police Headquarters and a copy of that report was forwarded to the Department. The applicant was transferred to the Villawood Immigration Detention Centre on 28 August 2009 and on that day she lodged a pro forma application for protection. A more complete application prepared with the assistance of a registered migration agent was lodged on 16 September 2009. Subsequently she was released from detention and returned to Queensland. In the meantime the applicant had been requested to attend an interview with a departmental officer to discuss her claims in relation to her application for a Protection Visa. That interview occurred on 21 October 2009 and resulted in a decision by the delegate on 2 December 2009 to refuse her application.
On 7 December 2009 an application for review to the Refugee Review Tribunal was received and receipt acknowledged.
On 10 December 2009 the Tribunal wrote to the applicant advising that it was unable to make a decision in the applicant’s favour on the material before it and therefore the applicant was invited to a hearing to give oral evidence and present argument. Initially the hearing was listed for 16 February 2010 at Sydney but in the interim (5 January 2010) the applicant was granted a bridging visa following the payment of security and subsequently returned to Brisbane. She requested that a hearing be held in Brisbane and accordingly a video conference was organised for 16 February 2010. A hearing took place on 16 February 2010 at Brisbane and Sydney by videolink and at that time the applicant was subject to a request for additional information. She successfully sought an extension of time which was granted until 19 March 2010 at which time further information and submissions were provided to the Tribunal.
The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection Visa on 21 April 2010 and provided notice of that decision under cover of letter dated that date. The decision was founded on the basis that the applicant did not satisfy the criteria set out in s.36(2) of the Migration Act. That is, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to China and found that she was not a person to whom Australia had protection regulations under the Refugees Convention as amended by the Refugees Protocols.
It is well settled that the Court has jurisdiction to review decisions in which an applicant can establish that the Tribunal went beyond jurisdiction in making that decision. Otherwise the decision will be regarded as a privative clause decision and be final and conclusive and is not subject to review by the Court.
Prima facie the Tribunal’s decision is a privative clause decision however if the decision is infected by jurisdictional error the decision will not be protected under s.474 of the Act and may then be subject to judicial review. The concept of judicial error has been addressed in various authorities and is well summarised in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf[2] where their Honours referring with approval to a passage in Craig v South Australia[3] held that an Administrative Tribunal:
“…falls into error 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 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 a jurisdictional error that will invalidate any order or decision of the Tribunal which reflects it.”[4]
[2] (2001) 206 CLR 323
[3] (1995) 184 CLR 163 at 179
[4] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 82
The Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (Cth) have been satisfied; s.65 Migration Act. The relevant regulations are those applying to a Sub Class 866 – Protection Visa. A criterion to be satisfied for the granting of a Protection Visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; s.36(2)(a) Migration Act. A refugee is defined by Article 1A(2) of the Refugees Convention to be a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country.”
The applicant’s main claim in this application was that she feared persecution due to being a Christian and her involvement in underground Christian churches in China. She claimed to have been arrested on three occasions and suffered detention and mistreatment. The Tribunal did not accept that the applicant had in fact been detained by police on the three occasions claimed nor did it accept the applicant’s alleged involvement in unregistered churches in China. In a very detailed decision the Tribunal considered the matters raised by the applicant. However the Tribunal found as a matter of fact a lack of credibility in the applicant’s evidence arising from a number of inconsistencies, a delay of over 12 months in applying for a protection visa and the applicant’s lack of knowledge about Christianity. The Tribunal did not accept the claimed matters of persecution actually existed.
The findings were open to the Tribunal on the evidence and there is no basis to find that the Tribunal used incorrect legal principles or asked itself the wrong questions in leading to its conclusion. In essence as the application reveals what the applicant seeks is a merits review.
It is well settled that findings as to credibility are findings of fact par excellence entrusted to the Tribunal alone to make.[5]
[5] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]; SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [18]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [21].
As was opined by McKerracher J in WZAMS v Minister for Immigration and Citizenship[6]:
“The Tribunal was not satisfied that the appellant was a refugee under the convention. The finding of fact including the credibility findings were matters uniquely within its jurisdiction and not within the jurisdiction of the Federal Magistrates Court or this Court. Neither the Federal Magistrates Court nor this Court has jurisdiction to engage in a merits review.”
[6] [2008] FCA 1352 at [30].
His Honour’s views simply reflect the well settled views of the Full Federal Court as recently expressed in Minister for Immigration and Citizenship v SZNPG[7] where the Court observed:
“It was not for the Federal Magistrates Court, nor for this Court, to review the merits of the RRT’s decision: … A wrong finding of fact is not an error of law: … Unsound reasoning is not an error of law…” (Authorities and citations omitted)
[7] [2010] FCAFC 51 at [29].
It follows that the Tribunal having not accepted the alleged harm and persecution complained of by the applicant concluded that the applicant did not have a well founded fear of persecution. The findings were findings open to the Tribunal and properly made by it. The applicant now seeks impermissible merits review. She has not demonstrated any jurisdictional error on the part of the Tribunal and in the circumstances the application is dismissed.
Orders
That the application filed 17 May 2010 be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 18 march 2011
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