MZXHK v Minister for Immigration - [2006] FMCA 778

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXHK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 778

MIGRATION – Protection visa – Refugee Review Tribunal – summary dismissal.

Federal Magistrates Court Rules 2001, r.13.10(a )
Federal Magistrates Act 1999, s.17A
Migration Act 1958, s.424

Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

MZXHK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 259 of 2006

Judgment of:

McInnis FM

Hearing date:

22 May 2006

Delivered at:

Melbourne

Delivered on:

22 May 2006

REPRESENTATION

Applicant:

In person (with interpreter)

Counsel for the First Respondent:

Mr G. Carroll

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 259 of 2006

MZXHK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for summary dismissal by the First Respondent seeking to dismiss a substantive application filed by the Applicant on 20 February 2006. The grounds relied upon by the First Respondent specifically relate to the application disclosing no reasonable cause of action, and accordingly the First Respondent relies upon Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (the Rules).
An application for summary dismissal is subject to s.17A of the Federal Magistrates Act 1999 (the Act) and I note for the present purposes that it is not necessary in an application of this kind for the court to determine that the application is hopeless or bound to fail for it to have no reasonable prospect of success pursuant to s.(3) of the Act. I refer to the relevant extract from the High Court decision in Dey v Victorian Railways Commissioner (1949) 78 CLR 62 as follows:-
“The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
In this application for summary dismissal, it is noted that the substantive application by the Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 27 January 2006. The Tribunal had affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant. It is noted that the Applicant before this court has relied upon not only the application filed on 20 February 2006 but also an affidavit sworn by him on 20 February 2006 and written submissions dated 27 March 2006.
It can be noted from the application that the grounds set out were in simple terms being the misinterpretation from another person on the first statement. The affidavit of the Applicant elaborates upon that ground and it is fair to say the Applicant, who is self-represented, though assisted by an interpreter this day, has provided confirmation that his concern ultimately was that the Tribunal in reaching its decision and determination of the facts had relied upon inconsistencies between a statement which had been made by the Applicant in support of his application compared with evidence he gave at the Tribunal hearing which occurred on 19 December 2005.
In his written submissions dated 27 March 2006, the Applicant asserts that the first statement effectively was unreliable and has confirmed to the court this day that the preferred version of events was the version the Applicant gave at the hearing and he seeks that the court, and by inference the Tribunal, should have ignored the first written statement.
The First Respondent has relied upon an outline of submissions in support of the application for summary dismissal which sets out in brief terms the relevant background including the claims of the Applicant. It is important to note that the Applicant is a Tamil Hindu male from Ipoh in Malaysia. He arrived in Australia on 10 May 2005. On 22 June 2005 he applied for a protection visa and on 12 August 2005 a delegate of the Minister refused the application. That decision of the delegate, as indicated, was affirmed by the Refugee Review Tribunal in its decision dated 27 January 2006.
The claim made by the Applicant before the Tribunal arose out of the assertion that he was Hindu and employed in a factory owned by Muslims and claims that he had had an affair with the Muslim daughter of one of the partners of the business and that that became known. He then claimed to have been beaten by Muslim youths and thugs, and police did not act on his complaints. He claimed that those Muslim leaders and youths were still looking for him.
The Tribunal, it is noted, had alerted the Applicant to a number of inconsistencies between the Applicant's oral evidence and information in his original visa application including the statement which had been drafted on his behalf. It is noted that after the hearing a letter was sent to the Applicant inviting his comment. That letter could properly be regarded as a letter pursuant to s.424A of the Migration Act 1958 (the Migration Act).
The Applicant, it appears, responded to that letter by correspondence dated 10 January 2006. The Applicant does not dispute that that process occurred, and nor do I take this application to be an application suggesting in any way that there has been a contravention of the obligations of the Tribunal pursuant to s.424A of the Migration Act. The main thrust of the concern of the Applicant is clearly the conclusions reached by the Tribunal which at least rely upon the inconsistencies brought to his attention between his statement in support of the application and the evidence before the Tribunal.
It seems clear to me that the Tribunal considered squarely that issue now the subject of concern to the Applicant. So much is evident from the Tribunal's decision where at page 13 of its decision it states, after dealing with the inconsistencies between the Applicant's evidence and the claims made in his protection visa application. the following:
“The applicant has indicated that he is illiterate and does not know English. He claims that he obtained assistance in drafting his application and statement, and that there was a lot of confusion in drafting the statement. As the Tribunal put to the applicant in its letter of 19 December 2005, he obtained the assistance of a person from the Asylum Seeker Resource Centre in completing his application. The applicant agreed at the hearing that this was the case. Further, the application records details regarding the name of the applicant's wife and the date of their marriage which accord with those given by the applicant at the hearing. It also correctly names the applicant's two children. …”
The Tribunal goes on to state:
“This indicates that the applicant was able to communicate key details to the person assisting with the form and that these were accurately recorded in the form. The Tribunal cannot accept that the person assisting the applicant was unfaithful to the applicant's own account, or that there was confusion or misinterpretation, to such an extent that the form refers to the Muslim woman by a name not used by the applicant, that it describes the position and role of her father in a manner entirely at odds with the claims the applicant wished to make and that it refers to a trip in January 2005 which the applicant never claimed to have made.”
In its decision, the Tribunal then proceeds to deal with the claims made by the Applicant, and it is fair to note that ultimately it makes what can only be described as significant adverse findings based upon inconsistencies of factual material which it dealt with during the course of its reasoning. By way of example, I note from the Tribunal's decision at page 14 that it did not accept as satisfactory the Applicant's explanation for the fundamental inconsistencies between the evidence in the protection visa application and the evidence given at the hearing. The Tribunal states specifically the following:
“… It is not willing to simply ignore the evidence provided in the applicant's protection visa application as irrelevant in the manner suggested by the applicant. It attaches significant weight to the inconsistencies on such fundamental matters as the name of the Muslim woman, her father's role in the business and the circumstances in which the applicant had contact with her. It finds that the applicant's claims regarding a relationship with a Muslim woman in his workplace lack credibility.”
The Tribunal then goes on to state also at page 14 of its decision the following:
“Even more significantly, the applicant could not recall the name of the relevant factory or enterprise. When asked which factory he had moved to after ... the applicant said it was the name of a Muslim man but could not recall that name. Later in the hearing he said that the name was ... but he could not recall exactly. The Tribunal considers that if the applicant had worked at ... for approximately ten years up until shortly before his departure for Australia, he would have no difficulty recalling the name of the factory. The applicant's failure to recall such fundamental information cannot be adequately explained by tension associated with the hearing.”
The Tribunal then, as I have indicated, made significant adverse findings in relation to the claims made by the Applicant. Those extracts are merely a sample of the adverse decision and findings made by the Tribunal.
It seems clear to me that the Tribunal has addressed in very clear terms the concern expressed in this court in relation to the inconsistencies between the statement supporting his application and his oral evidence before the Tribunal. To merely repeat that concern when it has been dealt with in the clear terms set out earlier in this judgment does not of itself, in my view, provide any or any sufficient basis upon which this court can conclude that the Tribunal has fallen into error or that there is any material upon which this court can conclude that there has been jurisdictional error. On the face of it, there is no jurisdictional error in the application, the grounds relied upon, the affidavit material and the subsequent written submission dated 27 March 2006 relied upon by the Applicant.
I make due allowance for the fact that the Applicant is self-represented, though assisted by an interpreter. He clearly has some difficulty in appreciating the basis upon which this court may proceed to consider review of the Tribunal decision and, perhaps not surprisingly, in his statements and the grounds set out in his application does not appear to address issues which otherwise might constitute jurisdictional error. Nevertheless, on the material before me, it seems clear that in this instance there is no reasonable prospect of success in this application, and I am otherwise satisfied, applying the relevant authorities, that it is appropriate in this instance to dismiss the application and to do so summarily pursuant to Rule 13.10(a) of the Rules.
I accept, as submitted by the First Respondent, that in this case the Tribunal has considered the claim and made findings which were reasonably open to it, and in the circumstances, those findings are free of jurisdictional error. Clearly, as the First Respondent has submitted, relying upon the decision of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 to 292, the weight to be given to material before a decision-maker is reserved for that person so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.
In this instance, for the reasons given, I am satisfied that the weight given to the material in the analysis of that material, particularly in relation to the oral evidence of the Applicant which in part led to adverse conclusions when compared with the written statement, are all conclusions reasonably open to the Tribunal, free of error. I am satisfied for the reasons given that the application for summary dismissal by the First Respondent should be granted.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 22 May 2006