Mzaem v Minister for Immigration and Border Protection
[2015] FCA 1377
•26 November 2015
FEDERAL COURT OF AUSTRALIA
MZAEM v Minister for Immigration and Border Protection [2015] FCA 1377
Citation: MZAEM v Minister for Immigration and Border Protection [2015] FCA 1377 Appeal from: MZAEM v Minister for Immigration & Anor [2015] FCCA 2322 Parties: MZAEM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: VID 481 of 2015 Judge: DAVIES J Date of judgment: 26 November 2015 Catchwords: MIGRATION – Protection (Class XA) Visa – appeal from decision of Federal Circuit Court – no error of law – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425 Date of hearing: 26 November 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: T Goodwin Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 481 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAEM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
26 NOVEMBER 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 481 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAEM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE:
26 NOVEMBER 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
The appellant has appealed the decision of the Federal Circuit Court (“FCC”) dismissing her application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the delegate of the first respondent not to grant the appellant a Protection (Class XA) Visa.
THE CLAIM FOR PROTECTION
The appellant is a citizen of China. She arrived in Australia in 2002 as the holder of a student visa. In 2011 she applied for a protection visa, claiming to fear persecution in China for reasons of her actual and imputed political opinions as being opposed to the Chinese Communist Party and her membership of one or more particular social groups. The Tribunal did not accept that the appellant was a credible witness and found most of the information she had provided in support of her protection claims to be untrue. This finding was essentially based on two matters: first, the length of time between the appellant arriving in Australia and making her protection claim, and secondly, the appellant’s lack of reference to fearing serious harm in China in any of her previous dealings with the Department of Immigration after arriving in Australia. Consequently, the Tribunal did not accept her claims to fear persecution for reasons of her actual and imputed political opinion. The Tribunal also found that the available country information did not indicate that she faced a real chance of suffering serious harm because of membership of any of the particular social groups she had identified or of any other social groups. Accordingly, the Tribunal concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth), nor the complementary protection criterion in s 36(2)(aa) of the Migration Act.
THE FEDERAL CIRCUIT COURT PROCEEDING
The appellant applied for judicial review of the decision of the Tribunal. The grounds of the application were as follows:
1.In determining that the [appellant] is not entitled to the grant of a Protection Visa, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.
2.The decision of the Tribunal was affected by legal error.
Particulars
i.The Tribunal has misapplied a legal test, or failed to comply with the statutory procedure. The Tribunal reviewed the application invalid for a Protection (Sub-Class 866) Visa.
ii.The Tribunal has a prejudice against the [appellant].
iii.The Tribunal failed to hold a hearing or allow the [appellant] to present oral evidence.
iv.The Tribunal failed to consider the facts and evidence presented.
v.The Tribunal failed to comply with the requirements of s 425 of the Migration Act 1958;
vi.The Tribunal failed to comply with the rules of natural justice and contravened s 422B of the Migration Act 1958.
The FCC dealt with each of the particulars in turn.
As to particular (i), the appellant had argued that the Tribunal had wrongly held that the protection visa application lodged on her behalf in December 2011 was valid. The FCC found no error in the finding of the Tribunal that there had been substantial compliance with the requirements for the making of a protection visa application.
As to particular (ii), the FCC held that there was nothing before it in the Tribunal’s reasons or otherwise which supported that claim. The claim appeared to the FCC to be based largely upon the fact that the Tribunal had not accepted the truth of what the appellant had claimed. The FCC stated that the Tribunal was entitled to form a view of the appellant’s credibility and that an adverse view did not mean that the Tribunal was prejudiced. The FCC also concluded that it was open to the Tribunal to reject the appellant’s claims for lack of credibility and that nothing that the appellant had identified to the FCC would amount to the Tribunal being prejudiced against her. The FCC concluded that the Tribunal’s reasons were careful and exhaustive and did not appear to be consistent with the Tribunal being prejudiced against the appellant.
As to particular (iii), the FCC held that it was patently not true that the Tribunal had failed to hold a hearing or allow the appellant to present oral evidence.
As to particular (iv), the FCC held that it was also clearly not true that the Tribunal had failed to consider the facts and evidence presented, and that the Tribunal’s reasons disclosed that it had considered the facts and evidence presented at some length.
As to particular (v), the FCC noted that the appellant had not identified any particular respect in which the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth), and the FCC was unable to detect any such failure to comply.
As to particular (vi), the FCC noted that the appellant had not explained how the Tribunal was said to have failed to comply with the rules of natural justice, and the FCC was unable to detect any breach of the rules of natural justice in this case.
The FCC found no jurisdictional error in the decision of the Tribunal and dismissed the application for judicial review.
THE APPEAL
The grounds of appeal from the decision of the FCC are as follows:
(1)The judgment affected (sic) by unfairness, particularly the Court ignored that the Tribunal exceeded its jurisdiction, or committed a jurisdictional error in determining that the [appellant] is not entitled to the grant of a protection visa:
a.Disregarding relevant considerations or paying regard to irrelevant considerations
b.Acting in bad faith
(2)The Court ignored that the Tribunal made a legal error. Example the Tribunal failed to comply with the statutory procedure.
The grounds are formulaic and lack content identifying the substantive basis upon which the appellant has appealed the decision of the FCC. However, the appellant, who represented herself, filed two sets of written submissions which substantially assisted to identify her case on appeal. Four grounds of appeal may be distilled as follows:
(1)there was jurisdictional error by the Tribunal in failing to take into account relevant considerations or taking into account irrelevant considerations;
(2)the decision of the Tribunal was affected by bias on the part of the Tribunal Member;
(3)the Tribunal erred in finding that the appellant had filed a valid visa application; and
(4)the Tribunal committed jurisdictional error in failing to receive submissions regarding the role of Mr Huang.
The matters relied on by the appellant in support of these grounds were all raised in substance before the FCC but in somewhat different terms, so that at least some of the grounds were not directly dealt with by the FCC’s reasons.
Turning to the first substantive ground of appeal, the appellant referred to aspects of the evidence which she contends were relevant to the determination of her visa application by the Tribunal in her favour. However, jurisdictional error is not made out by merely identifying evidence which the appellant submitted should have led the Tribunal to grant her visa application. Both the written and oral submissions identified that the appellant’s complaint was essentially a complaint that the Tribunal should have reached a different conclusion on the evidence before it.
As to ground 2, the submission was made that the Tribunal had acted at the direction and behest of the Department of Immigration without bringing to bear an independent, impartial and objective consideration of the merits of the appellant’s application. Nothing in the material supports that submission. It is clear from the reasons of the Tribunal that it gave independent consideration to the appellant’s application and offered her full and proper opportunity to present her case, including comment on the two matters that essentially formed the basis for the Tribunal’s adverse credibility finding. At the end of the day, the Tribunal did not accept that she was a witness of truth and rejected her visa application on that basis.
As to ground 3, no legal error is shown in either the Tribunal’s finding or the FCC’s finding that the appellant filed a valid visa application.
As to ground 4, the FCC dealt with this at paragraphs 46 to 48 of its reasons, and no error is shown in her Honour’s reasoning that the appellant was given full and proper opportunity to correct any errors caused by Mr Huang, the appellant’s former migration agent. It appears that Mr Huang had made several errors in the appellant’s visa application which was the subject of the first Tribunal decision (which was later set aside). Her Honour concluded that it was clear that the second Tribunal had applied its own mind to the facts of the case; that by the time of the second Tribunal hearing, the appellant was assisted by the Refugee and Immigration Law Centre which had clarified in written submissions the material that the appellant actually relied upon; and that the appellant was given the opportunity to correct any errors in her visa application caused by Mr Huang. Moreover, it is noted that the Tribunal’s adverse credit findings did not turn upon inconsistencies between the application lodged on the appellant’s behalf by Mr Huang and her evidence before the Tribunal, but rather upon her delay in making her protection claim and her lack of reference to her fearing serious harm in China in any of her previous dealings with the Department after arriving in Australia.
In substance, each of the grounds advanced by the appellant was a challenge to the merits of the Tribunal’s decision. It is not for this Court to consider afresh, or on the merits, the application to the Tribunal. The role of the Court is to consider the correctness of the decision of the FCC that no jurisdictional error was shown in the decision of the Tribunal. The appellant has not shown any error in the decision of the FCC, and to the extent that her grounds of appeal go beyond the matters that were considered by the FCC, she has not otherwise demonstrated jurisdictional error in the Tribunal’s decision.
Accordingly, the appeal must be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 7 December 2015
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