MZWCY and MZWCZ v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

[2006] FCA 1400

FEDERAL COURT OF AUSTRALIA

MZWCY & MZWCZ v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1400

MIGRATION – application for protection visa – appeal from Federal Magistrates Court – where application of review dismissed – whether Federal Magistrate erred in finding no fault in the Tribunal’s fact finding process that found the appellant was not a member of a peace committee and had not delivered newspapers or brochures – whether for the purposes of
s 36(2) of the Migration Act the Tribunal’s observation that the appellant could relocate to Government-held Cyprus constituted jurisdictional error – ground of appeal not raised before Federal Magistrate – whether certain prejudicial findings were not put to the appellant by the Tribunal – interpretation of ‘information’ in the context of s 424A of Migration Act – whether conclusions based on an assessment of evidence and credibility constitute ‘information’ pursuant to s 424A of the Migration Act

Held – appeal dismissed as no error shown in Federal Magistrate’s decision

Migration Act 1958 (Cth)

MZWCY & Anor v Minister for Immigration [2005] FMCA 390
Minister for Immigration & Multicultural & Indigenous Affairsv Khawar 67 ALD 577
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 215 ALR 162
VAF v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 206 ALR 471

MZWCY & MZWCZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 229 OF 2005

TRACEY J
26 OCTOBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 229 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWCY & MZWCZ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	26 OCTOBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 229 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWCY & MZWCZ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	26 OCTOBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a Federal Magistrate’s decision, handed down on 7 March 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 4 December 2003:  see MZWCY & Anor v Minister for Immigration [2005] FMCA 390. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Multicultural Affairs to refuse the grant of protection visas to the appellants.

2. The appellants are a husband and wife.  The husband claimed that he was ethnically Turkish.  The Tribunal found that he was a citizen of Cyprus.  Only the first named appellant (the husband) made specific claims under the Refugees Convention, his wife relying solely on her membership of his family.

3. The appellants arrived in Australia on 13 September 2002 on short-term visitors’ visas and lodged an application for protection (Class XA) visas with the Department on 14 October 2002.  The application was based on claims made by the husband that he feared persecution, and believed that he would be killed if he returned to Cyprus by reason of his active membership of a peace committee that sought to reunite Cyprus into one nation.  The appellant said he was involved in several demonstrations organised by the committee which were viewed as a threat to the Turkish authorities.  He resided in the northern, Turkish-controlled part of the island.  The appellant claimed that as a result of his affiliation and active involvement with the committee, he was classified as a traitor to his people, and was on several occasions picked up and physically abused by the Turkish Cypriot authorities.  He claimed that other members of the committee have since disappeared.  He further claimed that he had distributed newspapers and brochures which were critical of the Turkish authorities.

4. As already noted, on 4 December 2003, the Tribunal affirmed the delegate’s decision not to grant the protection visas.  The Tribunal rejected many of the husband’s central claims.  It did not accept that the appellant was a member of a peace committee.  The Tribunal reasoned that if the appellant had been a member of such an organisation, or had participated in its activities, he would have been able to provide details of its name, or at least be in a position to name the organisations represented by it.  The appellant when questioned could not supply this information.  The Tribunal also did not accept the husband’s claims that he had delivered anonymous brochures which were critical of Turkish authorities and had been detained and physically abused by those authorities.  The Tribunal relied in part, on a U.S. State Department report, noting that:

   ‘apart from a few well known cases the human rights situation in Northern Cyprus was fairly benign and people at the appellant’s claimed low level of activity … would not be treated in a way he claimed without being commented on by the State Department and human rights organisations…’

5. There were several grounds raised in the appellants’ application for judicial review.  They were not well drafted and were argumentative.  These grounds are conveniently summarised and reformulated in the learned Magistrate’s reasons: see MZWCY & Anor v Minister for Immigration [2005] FMCA 390 at [12]. They were that:

   (a)       the Tribunal made findings without an evidentiary basis, or contrary to the evidence of the appellant (that ‘the Tribunal did not consider’);

   (b)      the Tribunal imposed its own opinion in circumstances where there was no evidence to form such an opinion (said to constitute a Wednesbury type unreasonableness); and

   (c) the Tribunal denied the appellant procedural fairness when dealing with the country information.

   The learned Magistrate rejected all these contentions, finding that the final decision made by the tribunal was open to it on the evidence presented, and that the fact finding process used by the Tribunal in drawing the relevant conclusions was the commonplace process of fact finding and reasoning practised by tribunals and courts in this country: see MZWCY & Anor v Minister for Immigration [2005] FMCA 390 at [15].

6. The appeal to this Court from the decision of the Federal Magistrates Court is brought on the following grounds:

   ‘(a)     The learned magistrate has provided no reasons for his finding that the Tribunal’s discrete finding is beyond challenge, nor how NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 is not applicable and Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333 is

   (b)       The learned magistrate generalised and provided no arguable reasons for the conclusion by the Tribunal that the applicant’s case was implausible

   (c)       The learned magistrate has given no reasons for his statement that “the process adopted by the Tribunal involved the evaluation of the evidence of the appellant against the background of known circumstances applying in the country”

   (d)       The learned Magistrate has given no reasons as to why he thinks that there is no basis for the Tribunal’s decision that the appellant was not a member of the peace committee as a ‘Wednesbury decision’ or that the appellant was seeking a merits review

   (e)       The learned magistrate does not appear to address the grounds presented in the appellant’s contentions and case’

7. A number of observations may immediately be made about these grounds.  For the most part they involve the complaint that the learned Magistrate did not provide any adequate reasons for the various conclusions to which he came in the process of disposing of the appellants’ judicial review application.  The focus of attention is the adequacy of the Magistrate’s reasons rather than those of the Tribunal.  There is, in addition, a tentative suggestion that the learned Magistrate might not have dealt with the case which the appellants had presented to the Magistrate.  The grounds are not drawn with the necessary precision and the necessary particularity is lacking. 

8. In written submissions filed on behalf of the appellants some attempt is made to clarify the issues which the appellants seek to raise in this appeal.  In an outline dated 16 October 2006 the appellants identify ‘two issues’ which they say are raised by the grounds.  The submissions are relatively short and it may assist an understanding of the appellants’ case on the appeal to rehearse them at length:

   ‘1.Two issues are sought to be advanced in this appeal …   The first was in relation to the Tribunal’s finding that it did not accept that the applicant was a member of a peace committee because he was unable to give the peace committee a name, and that he could not have delivered AVRUPA newspaper  because of his job as a marketing manager.

   2.The applicant contends that this was a private opinion of the Tribunal and what the applicant was seeking was an examination of the validity of the exercise of the Tribunal’s opinion. Therefore if the decision was based on reasoning that was flawed (Minister for Immigration & Multicultural & Indigenous Affairs v Khawar 67 ALD 577, Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs 73 ALD 321) or on facts that did not exist (Minister for Immigration & Multicultural & Indigenous Affairs v Rajamanikram 69 ALD 275) the decision was liable to be set aside on the ground of jurisdictional error.

   3.The second issue related to the interpretation of s 36(2) of the Act and the decision in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affiars (2005) 222 CLR 161.

   4.        In both these issues, if the Tribunal’s finding that –

   (a)because the peace committee did not have a name,

   (b)because the applicant being a marketing manager, could not deliver the AVRUPA newspaper, and

   (c)that the applicant could relocate to Government-held Cyprus via Australia –

   then this information was not put to the applicant in a manner contemplated in s 424A. (See: SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.)’

9. Although the appellants refer to ‘two issues’, par 4 would seem intended to raise a third ground based on an alleged contravention of s 424A of the Migration Act 1958 (‘the Act’).

10. In his reasons for decision the learned Magistrate set out in full the grounds relied on by the appellants in seeking to establish jurisdictional error on the part of the Tribunal. He then summarised those grounds in the light of oral argument. That summary is set out at [5] above. The learned Magistrate then explained his reasons for rejecting the application. He said:

    ‘14.In respect of the applicant’s contention based upon the decision in the NAGV case, it is without substance. The Tribunal made a discrete finding (a finding, in my view, beyond challenge) that the applicant was not a refugee within the meaning of the Convention and its other, in this instance, unnecessary finding that the applicant could relocate does not taint or fatally strike down the Tribunal’s decision as one affected by jurisdictional error (see Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 333).

    15.A reading of the Tribunal’s decision, in my view, clearly indicates that the finding of the Tribunal that the applicant was not a refugee was open to it on the evidence before it.  The conclusions reached and the findings made by the Tribunal exhibit probative logic.  The complaints made about the process of fact finding and drawing conclusions by the Tribunal are unsubstantiated.  The process adopted by the Tribunal exhibits the common place process of fact finding and reasoning practised by Tribunals and Courts throughout the land.

    16.The contention that the Tribunal failed to consider the applicant’s case is without substance.  The Tribunal was thorough in its consideration of the applicant’s case and in so doing, afforded the applicant every reasonable opportunity to put his case in the manner that exhibited procedural fairness.  The Tribunal measured that case against the known circumstances as provided in the country information (which, despite the applicant’s contention to the contrary, it did consider), and concluded that the applicant’s story was implausible.  In respect of his claims concerning the delivery of newspapers, the Tribunal found this inherently implausible, a finding open to it.  The process adopted by the Tribunal involved the evaluation of the evidence of the applicant against a background of known circumstances applying in the country.

    17.There is no basis for me to find that the Tribunal’s finding that the applicant was not a member of ‘peace committee’ was an example of a Wednesbury type unreasonable decision.

    18.The review application, in my view, is a blatant attempt for merits review of the Tribunal’s decision with which this Court does not have jurisdiction to entertain.

    19.I find no error on the part of the Tribunal whatsoever, let alone a jurisdictional error. …’

11. The first issue identified by the appellants involves an attack on the Tribunal’s factual findings that the husband was not a member of a peace committee and had not delivered newspapers or brochures as he had claimed.  The Tribunal explained its reasons for rejecting these claims.  It found them to be implausible.  It explained why it had come to this view.  There can be no justification for characterising these findings as the ‘private opinion’ of the Tribunal.  They were findings made by the Tribunal in the exercise of its statutory jurisdiction.  Its findings were based in part on an assessment of the husband’s credibility and in part on country information to which the appellants’ attention had been directed.

12. The second issue arises because the Tribunal made the observation that:

    ‘Although it is not necessary to deal with the issue of relocation, the Tribunal considers a finding would have been open to it, on the evidence, that it would be reasonable for the applicant to relocate to Government-held Cyprus via Australia.’

13. As is plain from the Tribunal’s reasons its decision was not founded on the relocation point. As the learned Magistrate rightly observed this was an ‘unnecessary finding’. No question of the interpretation of s 36(2) of the Act or the construction placed on it and the Convention by the High Court by NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 therefore arose.

14. The third issue relates to the Tribunal’s obligations under s 424A of the Act. The appellants complain that certain prejudicial findings were not put to the husband by the Tribunal. They are identified in para 4 of the submissions quoted at [8] above. The first ‘finding’ is rather a step in the process of reasoning that led the Tribunal to determine that the husband was not, as he claimed, a member of a peace committee. When asked at the hearing to name the committee, the appellant was unable to do so. This was one of the factors relied on by the Tribunal in rejecting the husband’s claim. The second ‘finding’ is of the same character. The Tribunal regarded it as inherently unlikely that the husband, gainfully employed as a marketing manager, would be involved in the distribution of a newspaper which was available for purchase by anyone who wished to read it. The third ‘finding’ was properly so described. It was the conclusion that the husband could relocate to Government-held Cyprus by making application to do so in Australia.

15. Counsel for the appellants agreed that this third ‘issue’ had not been raised or argued before the Federal Magistrate.  The reason for this, it was contended, was that the submission was based on a decision of a Full Court of this Court in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 which had not been handed down at the time at which judicial review was sought in the Federal Magistrate’s Court. SZEEU dealt with a number of issues arising in relation to the construction and application of s 424A of the Act. These matters were the meaning of the word ‘application’ in s 424A(3)(b), the question of whether, following the High Court’s decision in SAAP v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 215 ALR 162, the Court retained any discretion to refuse relief once a contravention of s 424A was established and what was comprehended by the word ‘information’ in s 424A(1) of the Act. Of these three matters it is only the last which is relied on by the appellants in this appeal. At the time SZEEU was decided there had been many decisions of this Court in which the meaning of the word ‘information’ had been examined in the context of s 424A. They had been drawn together by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477. Relevantly that line of authority held that ‘information’ did not encompass the subjective appraisals, thought processes or determinations of the Tribunal. This line of authority was not disturbed in SZEEU: see at 235 (Moore J), 254 (Weinberg J) and 295 (Allsop J). It follows that the point is not novel and could have been argued before the learned Magistrate. Were it necessary to rule on the point, I would not be disposed to grant leave to the appellants to argue what is essentially a new ground on this appeal. In any event the ground would fail on the merits. It mistakes the meaning and purpose of s 424A. The section forms part of the statutory procedural fairness regime which is imposed by the Act. That regime does not require the Tribunal to expose its thought processes or subjective assessments to applicants in order to accord procedural fairness. Conclusions based on an assessment of evidence and credibility do not constitute ‘information’ within the meaning of s 424A: see VAF v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-7.

16. In this case the Tribunal did question the husband about his involvement with the peace committee and gave him the opportunity to explain his involvement with and knowledge of it. It also asked him about his claims to have delivered the newspapers and brochures. The Tribunal was not bound by s 424A of the Act to draw the husband’s attention to particular parts of the country information: see s 424A(3)(a). The Tribunal did not reason that ‘because the applicant being a marketing manager, [he] could not deliver the AVRUPA newspaper.’ What the Tribunal, in fact, said was:

    ‘Nor does the Tribunal accept that the applicant delivered the Avrupa/Afrika newspaper or supported it in any other way.  The applicant had a job as a marketing manager; he would not be delivering copies of a commercial newspaper.  His claim that he delivered anonymous brochures for the paper was implausible for the same reason and also because it was inconsistent with what is implied in the country information about the paper: that it is openly critical of the Northern Cypriot authorities in its own pages.’

    It can be seen immediately that the appellant’s submissions misrepresent the Tribunal’s reasoning.  So much was conceded by Counsel in argument.  The third piece of ‘information’ which it is said was not put to the husband related to the relocation issue on which the Tribunal did not rely.

1. No error is shown in the learned Magistrate’s decision.  The appeal will be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:       26 October 2006

Counsel for the Appellant:	Mr T Fernandez
Counsel for the Respondent:	Mr A Palmer
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 October 2006
Date of Judgment:	26 October 2006