Ly and Anor v Minister for Immigration and Anor (No.2)
[2007] FMCA 2040
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LY & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 2040 |
| MIGRATION – New factual material not admitted by the Court – whether illogical or irrelevant finding means jurisdictional error – Tribunal’s assessment of documents not “information” within s.359A – Tribunal not required to give a running commentary upon what it thinks about the evidence given, unless they are not obvious and natural appraisals – determination of credibility is an obvious and natural appraisal. |
| Migration Act1958 (Cth), ss.359A, 420, 424A, 430, 474 |
| Ly & Anor v Minister for Immigration & Anor [2007] FMCA 1633 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| First Applicant: | HAING IENG LY |
| Second Applicant: | ENG CHHAY LY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 3371 of 2006 |
| Judgment of: | Turner FM |
| Hearing dates: | 27 June & 27 November 2007 |
| Date of last submission: | 27 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Applicant: | Mr S. Ek of Ek Lawyers |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Ms B. Griffin of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3371 of 2006
| HAING IENG LY |
First Applicant
| ENG CHHAY LY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 10 October 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants Employer Nomination (Residence) (Class BW) visas.
The first-named applicant (“the applicant”) and his son (who is the second-named applicant) arrived in Australia on 6 February 1999 on Visitor (Short Stay) (Class TR) Subclass 676 visas. On 9 August 1999 the applicants were granted Subclass 457 visas, valid until 9 August 2003 (refer to Tribunal Decision Record at Court Book “CB” 229).
On 20 March 2002 the applicants applied to the Department of Immigration and Multicultural Affairs for Employer Nomination (Residence) (Class BW) visas. The applications were made on the basis of the first-named applicant’s visa nomination by Happy Group Pty Ltd (trading as the New Golden Court Seafood Restaurant) for the position of cook/chef.
This application was refused by a delegate of the first respondent on 5 June 2003 (CB 116) and by the Tribunal on review on 23 June 2004 (CB 170). An application for judicial review was subsequently lodged with this Court, and on 10 March 2006, Federal Magistrate Smith quashed the decision of the Tribunal by consent and remitted the matter to the Tribunal to be determined according to law (CB 179). By decision signed on 10 October 2006, the second Tribunal affirmed the decision of the Minister’s delegate not to grant the applicants Employer Nomination (Residence) (Class BW) visas.
The matter is now before this Court pursuant to an application for judicial review filed on 16 November 2007, and an amended application filed, by leave, on 27 June 2007.
Hearing on 27 June 2007
This matter came on for hearing on 27 June 2007. On this day, the applicant sought to tender material that was not before the Tribunal, and the hearing was adjourned pending the Court’s ruling on the admissibility into evidence of:
(a)the affidavit of Sokun Sok (and annexed material), sworn on 31 May 2007, and
(b)the affidavit of Sawarthey Ek (and annexed material), sworn on 8 June 2007.
The Court refused to admit the evidence (Ly & Anor v Minister for Immigration & Anor [2007] FMCA 1633, 15 October 2007), and the hearing of the substantive application was adjourned to 27 November 2007.
The applicant’s written submissions and the hearing on 27 November 2007
It is submitted for the applicant that the Tribunal was incorrect in giving the evidence of Mr Oth less weight. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
Also, in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, French J stated at [27] that
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Court does not find the decision of the Tribunal on this issue to be so unreasonable that no reasonable body could have come to it. The Tribunal set out its reasons at CB 233.8. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 the Full Court of the Federal Court of Australia stated at [95] per curiam that “[p]lainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
The Court finds that the applicant’s claims were discredited by the finding that the applicant had provided false documents in support of his visa application (CB 233.3). The Tribunal had good reason to reach that conclusion as the “Department confirmed with the Cambodian Ministry of Commerce it had never issued any documents regarding the Phnom Meas Restaurant” (CB 233.3). That was a comprehensive finding (a finding of large scope) against the crediblity of the applicant. The Court finds that the Tribunal acted judicially and according to law. There was cogent material to prove that the applicant provided false documents (CB 229.9, 230.3, 230.4, 230.9, 232.8, 233.3, 233.10). It was properly open to the Tribunal to place little on the evidence from Mr Oth. The Tribunal contacted Mr Oth by telephone on 6 October 2006 (CB 231.10), but could not “be satisfied that the evidence from Mr Oth establishes that the visa applicant worked at the Phnom Meas restaurant as a cook between 1993 and 1998” (CB 233.10). The Tribunal had evidence from a field visit that was inconsistent with the evidence of Mr Oth and Mr Meng: it cannot be claimed that the Tribunal was not entitled to give little weight to the evidence of Mr Oth and Mr Meng. The Court finds no departure from the principles stated by Justices Lee and Moore in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27].
The applicant referred to the decision in NAJT vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, where Justice Madgwick (with whom Justice Conti agreed) stated at [212] that
A decision-maker cannot be said to “have regard” to all of the information to hand…without at least really and genuinely giving it consideration….[and] engaged in “an active intellectual process”…
There is no requirement that the Tribunal evaluate evidence in a particular manner. It is contended by the applicant that there were three ways to deal with the evidence of Mr Oth (Transcript 3, line 43). The applicant contends later that these are matters that the decision maker “needs to attend to in having regard to corroborative evidence” (Transcript 6, line 25). In effect, the applicant is saying “this is the way I would have dealt with the evidence; the Tribunal erred in dealing with it another way”. The cases referred to by the applicant do not establish that there is one way only in which corroborative evidence is to be considered and evaluated. Even if the Court found a lapse in logic, which it does not, the Court would apply the decision referred to by the first respondent in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 92, where Justice Kirby “noted that judicial review is not a forum for interfering with the ‘evidentiary and factual basis of administrative decisions on the grounds of minor infelicities or trivial lapses in logic’” (first respondent’s written submissions, para.45).
The Tribunal considered the evidence of Mr Oth (at CB 206, 230.4, 230.8, 231.2, 231.8, 231.10, 233.6–233.10), and, as stated above, telephoned him and discussed it (CB 231.10 and 233.10).
The applicant referred also to the decision in Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 per Justices North and Madgwick, in particular the passage at [23] that relates to s.430 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal here dealt with the evidence of Mr Oth and its reasons for giving it little weight. The decision in Kalala does not show that the Tribunal made an error of law in the present case. Here, there was material before the Tribunal that was destructive of the applicant’s credibility. The Court finds that the Tribunal was free to make that finding (CB 233.3) before having regard to the corroborative material in its “Findings and Reasons”. As detailed above, it discussed the evidence of Mr Oth before making its findings.
The applicant then makes the same complaints about the treatment of the reference from Mr Meng. Mr Meng was referred to at CB 230.4, 230.8, 230.10, 231.5, 231.10, 233.2, 233.6 and 233.7. The Department tried to contact Mr Meng to verify his evidence, but the telephone number provided by the applicant was not connected (CB 233.1). Neither the Department nor the Tribunal was able to verify the contents of the reference directly with Mr Meng (CB 233.7). The Court repeats its findings about Mr Oth above. The Court finds no error in the way the Tribunal assessed the evidence of Mr Meng.
The applicant then raises what is called the “field visit issue”. A report relating to the field visit to the address of the Phnom Meas restaurant is at CB 92. The report stated that the officers had been told that the restaurant was established in 1999, and that they checked the names of the head chefs and all were different from the applicant’s name. Mr Meng was not at the restaurant and the officers tried unsuccessfully to contact him by telephone.
The applicant alleges that the following evidence was before the Tribunal that the Phnom Meas restaurant operated between 1993 and 1998, and it was not rejected by the Tribunal:
(a)Report signed by village chiefs and Mr Meng dated 28 April 2003 (CB 110).
The Tribunal referred to that document at CB 230.4. The Tribunal had regard to that document and observed that the reports and minutes “do not establish that the visa applicant worked there as a cook from 1993 to 1998” (CB 233.6).
(b)Minutes of business operations at Phnom Meas restaurant dated 28 April 2003 (CB 162).
It was agreed at the hearing that the content of this document was effectively the same as the document at CB 110. The Tribunal said it gave this evidence little weight (CB 233.8).
(c)Written statement by Mr Oth dated 30 May 2006 (CB 206-207) and his oral evidence on 6 October 2006 (CB 231.10).
The Tribunal gave this evidence little weight (CB 233.8).
(d)Reference from Mr Meng dated 19 March 1999 (CB 57).
The Tribunal referred to this at CB 233.7 (in addition to the references noted above) and gave it little weight (CB 233.8).
Those findings were properly open to the Tribunal.
The applicant then makes complaints about the findings by the Tribunal in relation to the field visit (applicant’s written submissions para.55). The applicant then complains that if the Tribunal intended to find that the Phnom Meas restaurant was only established in 1999, then that was inconsistent with the evidence in the proceeding paragraph above. As stated above, the Tribunal gave that evidence little weight. The applicant is seeking to review the merits of the decision of the Tribunal, which is not available.
In para.59 of his written submissions, the applicant seeks to reconstruct and interpret evidence, and says that it was clear that the officers spoke with employees who had no knowledge of the restaurant prior to 1999. The applicant is thereby seeking to review the merits, which is not available. Paragraphs 59(a) to (c) of the written submissions then propose what the applicant contends is the logic that was applied by the Tribunal. In doing so, a review of the merits is sought, which is not available.
The applicant contends that there was no comprehensive finding of dishonesty or untruthfulness. The Court disagrees; the finding that the applicant provided false documents is a grave finding against the applicant (it was agreed properly for the applicant that it was “a serious finding” – Transcript 28, line 6). At Transcript 7, line 5 the applicant again asserts that he would have evaluated the evidence differently. That shows no error by the Tribunal.
The applicant then raises the “corroborative evidence II issue”, which relates to the way in which the Tribunal dealt with the reference from Mr Meng (CB 57). The Tribunal said that it was unable to verify the contents of the reference (CB 233.6). This reference has been considered above.
The applicant then raises the “field visit issue”. This issue has been considered above.
The applicant then raises “the procedural issue” and an alleged failure to comply with s.359A of the Act. This issue is considered under ground three of the application.
The application here alleges a breach of s.359A(1)(b). As far as it relevant, s.359A provides as follows:
Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
The s.359A letter is at CB 182-183. The applicant alleges that the Tribunal used the information in the letter for three reasons:
(i)To support a finding that the applicant provided false documents;
(ii)Because it may lead to a rejection of the applicant’s claim that he worked as a cook at the Phnom Meas restaurant; and
(iii)To make a finding that it did not accept the corroborative evidence of Mr Oth and Mr Meng.
The Court finds that the statement that “it may lead the Tribunal to not accept your claim that you worked as a chef at the Phnom Meas restaurant” includes a reference to not accepting evidence of Mr Oth (CB 206) and Mr Meng (CB 57), both of which go to the issue of being employed at the Phnom Meas restaurant from 1993-1998. Also, the letter states that
[the] information is relevant…as it indicates that you may not have provided genuine documents regarding your previous employment.
Clearly this comprehends the material from Mr Oth and Mr Meng.
The applicant referred to the decision in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 and referred to the finding at [119] that there was a failure to observe the procedures in 424A(1)(a) and (b). Obviously, each case depends on what is stated in the relevant letter. As found above, the letter here complied with s.359A(1)(b). A breach of s.359A(1)(a) is not alleged (Transcript 13, line 41).
The first respondent submits that the gravamen of the applicant’s case is to ask the Court to review the merits. The Court finds much to commend that submission. The applicant seeks a review of findings of fact, of the weight given to evidence, and of the way that the Tribunal considered the evidence before it. Those are all matters for the Tribunal and the Court would have power to interfere only if it finds jurisdictional error. As set out elsewhere in this decision, jurisdictional error has not been established. The Court agrees with the following statement by the Tribunal in another matter:
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
As to the reference from Mr Meng (CB 57), the first respondent submits that the document was not evidence, but merely a piece of paper. As neither the content of that document nor its authorship was able to be verified, it was given little weight: weight is a matter for the Tribunal.
As to Mr Oth, the first respondent submits that his evidence was “grappled with”. The Court accepts that his evidence was considered and dealt with and given little weight. “Grappled with” is an imprecise description that includes many options.
As to the decision in WAIJ (ante), the first respondent refers to [27] where Justices Lee and Moore stated that the Tribunal said that it was unnecessary for it to consider corroborative material because it considered it unlikely that the events described by the applicant had occurred. The Court agrees that that is a very different situation from the present.
In reply, the applicant submitted that the Tribunal had to have regard to the evidence of Mr Oth and Mr Meng: the Tribunal did that.
The application
In his application filed on 16 November 2006, the applicant set out three grounds as follows:
(1)The Tribunal, in finding that the applicant “did not work at the Phnom Meas restaurant as a cook”, relied on evidence obtained by Departmental officers during a field visit to the restaurant site “that the restaurant was only established in 1999.” The Tribunal “was satisfied as to the accuracy of the information obtained.” Yet the Tribunal then accepted “that Mr Meng operated the restaurant between 1992 and 2002”, which finding indicates that the evidence obtained by Departmental officers during the field visit was unreliable. In these circumstance, the Tribunal’s findings on these issues was illogical or irrational, giving rise to jurisdictional error. Alternatively, the Tribunal , in finding that the evidence obtained by the Departmental officers during the field visit was reliable, overlooked or failed to have regard to other evidence before it, giving rise to jurisdictional error.
(2)The Tribunal found “that the visa applicant has provided false documents in support of his visa application”. The Tribunal feel [sic fell] into jurisdictional error in making this finding.
(3)The Tribunal, after finding that the applicant “provided false documents in support of his visa application”, rejected the evidence of Sam Ath Oth on the basis that the applicant has provided false documents to the Department in support of his application. The applicant has three complaints about the Tribunal’s reasoning process.
(i)whether or not the applicant provided false documents is irrelevant to the reliability of Sam Ath Oth’s evidence;
(ii)either Sam Ath Oth was telling the truth or not telling the truth. The Tribunal did not find that he was telling the truth. Therefore it erred in not accepting his evidence; and
(iii)the Tribunal did not warn the applicant in its s.359A letter that it would use its finding that the applicant had not provided genuine documents to the Tribunal to reject evidence provided by other witnesses. On this basis the Tribunal failed to comply with s.424A (1) (b) of the Migration Act.
The amended application set out the following grounds and particulars:
(1)The Tribunal relied in its decision on information provided by the Department that the Ministry of Commerce in Cambodia “had never issued any documents regarding the operations and/or services of the Phnom Meas Restaurant”. This information was wrong. In the circumstances, the Tribunal’s decision is vitiated by jurisdictional error.
(2)[Abandoned in Court on 27 June 2007]
(3)In relation to the information provided by the Department that the Ministry of Commerce in Cambodia “had never issued any documents regarding the operations and/or services of the Phnom Meas Restaurant”, there was failure to comply with s.359A of the Migration Act.
(4)The Tribunal did not have proper regard to the written and oral corroborative evidence of Sam Ath Oth.
(5)The Tribunal did not have proper regard to the reference from Mr Meng dated 19 March 1999.
(6)The Tribunal fell into jurisdictional error in dealing with the evidence obtained by the Department during a field visit to Phnom Meas restaurant on 17 March 2003.
Findings of the Court as to the grounds in the application
Ground one
Ground one asserts that the evidence before the Tribunal was unreliable and that findings based on it were illogical or irrelevant, giving rise to jurisdictional error. As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 per Justice Finkelstein at [32]:
the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29].
Alternatively, it is alleged that the Tribunal, in finding that the evidence from Departmental officers was reliable, failed to have regard to other evidence before it and thus fell into jurisdictional error. There is nothing to show that the Tribunal failed to have regard to evidence. As stated by the Federal Court of Australia in Lee (ante) at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The alternative ground therefore seeks a review of the merits, which is not available. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Ground one is rejected.
Ground two
Ground two alleges that the Tribunal fell into jurisdictional error by finding that the applicant provided fake documents in support of his application. The Tribunal can accept or reject evidence proffered as it deems appropriate: Lee (ante). A review of the merits is not available: NAHI (ante). Ground two is rejected.
Ground three
Ground three complains about the Tribunal rejecting the evidence of Sam Ath Oth. It is for the Tribunal to accept or reject evidence proffered: Lee (ante).
It is complained that the Tribunal breached s.359A by not warning the applicant that it would use its finding that the applicant had not provided genuine documents to the Tribunal to reject evidence by other witnesses. The Tribunal’s assessment of the documents (evidence) is not “information” covered by s.359A. The Tribunal’s subjective appraisals, thought processes, and determinations are not “information” for the purposes of s.359A: Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428 [95] per Allsop J; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24] per Finn and Stone JJ; NBKT v Minister for Immigration and Multicultural Affairs (2006) 93 ALD 333 per Young J at [30], Gyles and Stone JJ agreeing. In any event, the false documents were documents that the applicant gave for the purposes of the application for review, and are covered by the exception in s.359A(4)(b). As stated in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48]:
...as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Court refers also to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant’s evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said:
The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant’s case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice.
For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and Kioa v West (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].
The Court is satisfied that the Tribunal’s determination of the credibility of the appellant and the truthfulness of his claims comprise obvious and natural appraisals of the material and evidence presented to it. Further the Tribunal’s findings based on country information were open to it and there is no obligation to provide the appellant with such material. Accordingly no error of the Tribunal nor of Turner FM exists, and this ground of appeal is dismissed.
As decided in Applicant A125 of 2003 (ante) at [89]: “As SZBEL makes clear (at [48]) the RRT is not obliged to provide ‘a running commentary upon what it thinks about the evidence that is given’”. A breach of s.359A has not been established. Ground three is rejected.
Findings of the Court as to the grounds in the amended application
Ground one alleges that in reaching its decision the Tribunal relied on information that was wrong. There was nothing before the Tribunal to establish that the information provided by the Department that “the Ministry of Commerce in Cambodia ‘had never issued any documents regarding the operations and/or services of the Phnom Meas Restaurant’” was wrong. The Tribunal did not fall into error. The Full Court of the Federal Court stated in NAHI (ante) at [11] that (emphasis added):
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The Court finds that principle applicable to the assessment of the accuracy of evidence before the Tribunal. Ground one is rejected.
Ground two was abandoned in Court on 27 June 2007.
Ground three alleges a failure to comply with s.359A in relation to information provided by the Department that the Ministry of Commerce in Cambodia “had never issued any documents regarding the operations and/or services of the Phnom Meas Restaurant”. That information was disclosed in the s.359A letter (at CB 183.1), and its relevance explained. A breach of s.359A has not been established. Ground three is rejected.
Ground four alleges that the Tribunal did not have proper regard to the evidence of Sam Ath Oth. The Tribunal had regard to the statement of Mr Oth (dated 30 May 2006) and the oral evidence from Mr Oth obtained on 6 October 2006 (CB 233.8). The Tribunal gave the evidence less weight for the reasons it stated (CB 233.8). The question of weight is one for the Tribunal: Lee (ante). No error has been established. Ground four is rejected.
Ground five alleges that the Tribunal did not have proper regard to the reference from Mr Meng, dated 19 March 2007. The Tribunal referred to references from Mr Meng, but stated that “neither the Department nor the Tribunal was able to verify the contents of the reference directly with Mr Meng” (CB 231.5, 233.7). The Tribunal was entitled to accept or reject or give weight to the evidence as it thought appropriate: Lee (ante). No error is established. Ground five is rejected.
Ground six alleges that the Tribunal fell into error in dealing with the evidence obtained by the Department during a field visit to Phnom Meas restaurant on 17 March 2003. The Tribunal considered the applicant’s concerns in relation to the field visit but was satisfied as to the accuracy of the information obtained (CB 232.9). The Tribunal set out its considerations relating to the field visit at CB 229.9 and 232.8–233.2). The information from the field visit was put to the applicant in the s.359A letter (CB 182.7, for details c/f p.182.7 with 229.9). No error has been demonstrated. Ground six is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
0
29
1