MZXKH v Minister for Immigration - [2006] FMCA 1696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1696

MIGRATION – Protection Visa – Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A of Migration Act 1958 – whether failure to consider integer of claim – extent of duty of Tribunal to make further inquiries.

Migration Act 1958, s.424A

Applicant:

MZXKH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 747 of 2006

Judgment of:

McInnis FM

Hearing date:

25 October 2006

Delivered at:

Melbourne

Delivered on:

17 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr J. Gibson

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr R. Knowles

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 747 of 2006

MZXKH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application judicial review is sought of a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 May 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant to the Applicant a protection visa.
The Applicant has relied upon an Amended Application filed 18 September 2006 and counsel for the Applicant relied upon Contentions of Fact and Law filed the same day.
The Applicant is a citizen of Burma who entered Australia on 31 March 2004. He applied for a protection visa on 6 April 2004 based upon a claim of his political opinion together with ethnic and religious background. He asserted he faced a real chance of persecution in Burma as a result of those factors. Specifically he claimed that he had been an active supporter of the democracy movement in Burma and, in particular, the National League for Democracy.
In a Statutory Declaration relied upon in support of the application for a protection visa (Court Book p.56) the Applicant specifically stated the following:
“4.In the evening of 5 August 1987 the Military Government announced the demonetarization of our currency (75 kyats, 35…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 1696
Decision Date: 17 November 2006

CaseChat Overview and Summary

In the matter of MZXKH v Minister for Immigration, the applicant sought judicial review of a decision made by the Tribunal rejecting his claims for protection visa. The applicant argued that the Tribunal failed to comply with statutory obligations under s.424A of the Migration Act 1958 (Cth) by not providing adequate reasons for rejecting his claims. The primary focus of the dispute was whether the Tribunal's reasoning satisfied the legal requirements for providing reasons under s.424A, particularly in relation to the applicant's claim of being an Indian leader during the pro-democracy demonstrations.

The court was required to determine whether the Tribunal's decision adequately addressed the applicant's claims and whether it provided sufficient reasons to justify the rejection of these claims under s.424A. The applicant argued that the Tribunal's failure to mention his claim of being the Indian leader in his initial statements led to an inadequate assessment of his claims. Conversely, the Minister submitted that the Tribunal's decision clearly addressed the applicant's claims, including the timing of the claim, and thus complied with the statutory obligations.

The court examined the Tribunal's decision and found that it had indeed addressed the applicant's claims and the reasons for rejecting them. The Tribunal noted the applicant's claim of being an Indian leader was only made at the review stage, which was instrumental in its decision. The court held that the Tribunal's reasoning sufficiently explained its decision and complied with the statutory requirements of s.424A. Therefore, the court dismissed the application, finding no basis for the applicant's contention that the Tribunal failed to provide adequate reasons.

The court ordered that the application be dismissed and that the applicant pay the costs of the First Respondent in the sum of $5,000.00.

Orders

Orders of the court

The Application as amended be dismissed.

The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Reliance was also placed upon the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J at [22] and [23] with whom Weinberg J agreed at [177]. It was submitted that in the present case for the purpose of s.424A the relevant information is "that the applicant said so much and no more on the earlier occasion". It was submitted that:“The knowledge of the Tribunal of the content of his earlier statements including his statutory declaration accompanying his protection visa application ... including the limits of its content, can be seen to be a part of the reason for the decision because its content was instrumental to the Tribunal reaching a conclusion that his claims in this respect should be rejected.” It was argued the reasoning of the Tribunal showed it regarded the failure to mention the claim before the review process as a significant matter sufficiently important to warrant specific mention for present purposes. The conclusions set out in the extract in paragraph 22 above includes the statement by the Tribunal when rejecting the Applicant was known as the "Indian leader" that it reached that conclusion also from "the fact that this claim was only first made at the review stage of the application". The First Respondent submitted that the Tribunal did not fail to comply with s.424A of the Act. Reference was made to the extract from the Tribunal's decision referred to above and in particular the suggestion that a claim was only first made at the review stage of the application. The First Respondent accepted that this information formed part of the reason for the Tribunal's rejection of the Applicant's claim that he was known as the "Indian leader" of the demonstrations in 1987 and 1988. It was further accepted that that information formed part of the reason of the Tribunal's decision. Reference was made to an exchange which occurred at the hearing where, in response to the claim of being a leader, the Tribunal notes the following:“The Indian leader - this has only been raised more recently. In your first lot of documents, you said you took part. You were a bystander. You were hit and you took part because you got angry. But there's no talk about you being an Indian leader or outer (sic) head. It's something that’s come up more recently I think. I could be wrong. I was wondering why it’s only been raised more recently rather than in your initial statement”(Supplementary Court Book p.35, lines 10-36). It was submitted that in response the Applicant stated that his former representative had only had a short period of time in which to prepare his initial statement lodged with the Department. Towards the end of the hearing it was submitted that the Applicant's representative gave detailed submissions about the fact that the Applicant's initial statement appeared to be different. It was submitted that the question concerning the Applicant's profile set out in the s.424A letter (question 8), taken in the context of what occurred at the Tribunal hearing and having regard to the Applicant's written statements to the Tribunal, made it clear that the Tribunal was concerned about the Applicant's augmented claim that during the pro‑democracy demonstrations he had attained a significant profile as an Indian leader. Accordingly, it was submitted the Tribunal complied with the requirements of s.424A in relation to that information.

Ratio Decidendi

Legal Principle Established

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