MZXKI v Minister for Immigration and Citizenship

[2007] FCA 1575

FEDERAL COURT OF AUSTRALIA

MZXKI v Minister for Immigration and Citizenship [2007] FCA 1575

MZXKI AND MZXKJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 338 OF 2007

TRACEY J
13 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 338 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXKI
First Appellant

MZXKJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	13 NOVEMBER 2007
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 338 OF 2007

BETWEEN:

MZXKI
First Appellant

MZXKJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	13 NOVEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. This is an appeal against a judgment of a Federal Magistrate dated 5 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 May 2006: see [2007] FMCA 464. The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) dated 22 July 2005 to refuse to grant the appellants protection (class XA) visas.

2. The appellants (who are married) are both citizens of Sri Lanka.  They arrived in Australia on 10 April 2005.  They entered on short stay tourist visas.  On 9 May 2005, the appellants applied for protection visas, stating that they each feared persecution should they return to Sri Lanka as a result of their active role in providing support to the United National Party (“the UNP”).   The delegate’s decision record sent to the appellants on 22 July 2005 stated:

   “Given that the applicants did not apply for refugee status in Australia until the day before they were required to depart Australia as a condition of their subclass 676 Tourist (Short Stay) visa, I find that the applicants’ delay in submitting a protection visa application raises serious concerns about the immediacy, gravity and credibility of their claims to fear persecution in Sri Lanka.”

   REFUGEE REVIEW TRIBUNAL

3. On 19 August 2005 the appellants applied for review of the delegate’s decision to refuse to grant protection visas.  Before the Tribunal, the appellants claimed that they had a genuine fear that they would be killed by political opponents of the UNP if forced to return to Sri Lanka.  The first appellant asserted that he was forced to close his business as a result of threats, and that his wife (the second appellant) was the target of an attempted kidnapping and had her employment terminated because of their political affiliations.  Further, it was claimed that the families of the appellants had been constantly threatened with physical violence and the local authorities had refused to take action.

4. While it appears that the Tribunal accepted that both appellants had actively supported the UNP, it did not accept that they faced any real danger as a result of this political involvement.  In reaching this conclusion, the Tribunal held that the appellants had only claimed their fear of being kidnapped and murdered once prompted by the Tribunal. The Tribunal held that the appellants’ failure to reveal these alleged incidents of persecution at the very earliest stages of their protection visa applications was an indication that their claims were not genuine.  The claims were only raised once the original visa application had been refused.  The Tribunal therefore concluded that it was not satisfied that the appellants faced a real chance of persecution for reason of real or imputed political opinion, or for any other Convention reason.

   FEDERAL MAGISTRATES COURT

5. The appellants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  Their amended application contained the following grounds:

   “1.      The Tribunal has not made a decision about the persecution the applicants suffered due to the convention reason of their political opinion and thus has not performed its task under the Migration Act.

   2.        The Tribunal has applied the wrong test in giving no weight to the applicant-wife’s evidence regarding the attempts of her kidnap and rape.

   3.        The Tribunal’s funding that the applicant-wife was not terminated from her teaching job due to her political opinion was not supported by evidence.

   4.        The Tribunal has failed to explore and determine whether the applicant-wife constitutes a particular social group in terms of the convention reasons thus breached it (sic) task of assessing this convention ground.  Its purported conclusion that there was no clear nexus between her and the murder of her uncle was a wrong interpretation/test contrary to the current precedents set by the Australian Courts.

   5.        The tribunal has not assessed the integer of the applicants’ claims. Thus failed (sic) into jurisdictional error.”

6. At the hearing before the Federal Magistrate the appellants advised the Court that ground 5 related to the Tribunal’s failure to refer to country information and consider the appellants’ claims against that information.

7. At the hearing one of the appellants told the Court that she felt that they had not been given a proper hearing by the Tribunal and made references to the demeanour of the Tribunal member which had led to her perception that the Tribunal was not giving serious consideration to the claim.

8. In dismissing the appellants’ contention that the Tribunal had failed properly to consider each claim, the Federal Magistrate stated, at [27]:

   “In my view a proper reading of the Tribunal’s decision and in particular the extracts which I have deliberately set out in detail, demonstrate that the Tribunal has addressed the claims made by the Applicants.  It has then drawn conclusions reasonably open to it on the facts albeit conclusions adverse to the Applicants.  It has done so in a manner free of jurisdictional error.”

9. Although none of the grounds relied on by the appellants alleged denial of procedural fairness or a contravention of the procedural requirements of the Act on the part of the Tribunal the learned Federal Magistrate turned his mind to these matters.  He concluded, at [29]:

   “I cannot see any evidence that the Tribunal has otherwise breached any statutory provision and specifically I am not satisfied there has been a breach of s 424A of the Migration Act.  It is clear that the Tribunal dealt with information provided in oral evidence by the Second Applicant, and as submitted by the First Respondent s 424A(3)(b) of the Migration Act applies.  It is not necessary for the Court to further consider other submissions in relation to this issue and specifically not necessary for the Court to consider the application of s 422B of the Migration Act.  In any event on my reading of the Tribunal’s decision I am not satisfied that even if the Court was to consider common law procedural fairness in this context that there has not been any denial of procedural fairness to the Applicants.”

10. The learned Magistrate dealt comprehensively with the grounds raised by the appellants in their amended application.  He concluded, at [28]:

    “It [the Tribunal] specifically considered and dealt with the claims but ultimately as a matter of fact was not persuaded there was a sufficient connection between the applicants’ political opinions and the incidents claimed.  It also analysed in some details the claims and clearly developed reasoning reasonably open to it.  In particular … the Tribunal analysed in appropriate detail the July 2004 incidents [which included the incidents identified in grounds 2 and 3].  That analysis was an analysis reasonably open to the Tribunal and its conclusions in relation to that and other matters to the extent that they were adverse conclusions of credibility and were matters for the Tribunal to determine.  In relation to the credibility findings I accept the submissions for and on behalf of the [Minister] that those findings are findings of fact which in this case were reasonably open to the Tribunal and do not demonstrate jurisdictional error.”

11. The Federal Magistrate dismissed the application with costs.

    APPEAL TO THIS COURT

12. The notice of appeal filed in this Court by the appellant on 26 April 2007 raises the following grounds of appeal:

    “(a)The learned Magistrate erred and made a mistake when he said that there is insufficient material before the Court for there to be any finding of apprehended bias.

    (b)The learned Magistrate erred in accepting the Tribunal’s finding that the second applicant’s father was involved in the UNP but did not have ongoing political problems.

    (c)The learned Magistrate erred in finding that s 424A(3)(b) applies with regard to the evidence given by the applicants in the hearing.

    (d)The learned Magistrate erred in concluding that s 422B does not apply in our case.

    (e)The learned Magistrate erred in holding that the tribunal has not failed to explore that my wife belongs to a particular social group and nexus between her and the murder of her uncle.

    (f)The learned Magistrate erred in holding my wife’s sacking was not politically motivated.

    (g)The learned Magistrate ignored that the Tribunal has not considered the integer claims of both of us.”

13. Most of the grounds lack particularity.  At least one (ground (f)) attributed a finding to the Federal Magistrate which he had not made.

14. The Minister objected that a number of the grounds which alleged error on the part of the Tribunal had not been advanced before the Federal Magistrate.

15. The appellants were advised that this appeal would be heard on 15 October 2007.  They were so advised by letters, addressed to them personally from the solicitor acting for the Minister.  On 10 October 2007 they were provided with copies of the Minister’s outline of argument.

16. When the matter was called on for hearing on 15 October 2007 the first appellant appeared in person.  He had the assistance of an interpreter.  The second appellant did not appear.  I asked the first appellant whether he was in a position to explain and develop the grounds on which he sought to rely in this Court.  He said that he was not.  Although he had signed the notice of appeal it had not been translated for him.  It had been prepared by a solicitor who had acted on the instructions of the second appellant.  The first appellant claimed not to have received the letter, sent by the Minister’s solicitor, advising of the hearing date.  He had been advised by telephone of the date.  The second appellant had, however, told him that the appeal would not be heard until May 2008.  As a result he had not sought his own legal advice prior to the hearing.

17. Counsel for the Minister sought an order dismissing the second appellant’s appeal for want of appearance under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I declined to make that order because there was a single appeal before the Court and I did not consider that the appeal by the second appellant could be dismissed as if it were a separate, free standing, appeal.

18. I reserved my decision but granted the first appellant leave to file any written submissions he may wish to advance in support of the appeal on or before 26 October 2007.  He filed submissions on behalf of himself and his wife.

19. The written submissions contained four paragraphs.  The first three developed arguments relating to the alleged failure by the Tribunal to comply with the requirements of s 424A of the Act.  As developed these submissions passed beyond the issues raised in the grounds relied on before the Federal Magistrates Court and, on appeal, this Court.  It is, therefore, necessary to set out the relevant parts of the submissions in full in order to deal with them.  They read:

    “1.The appellants state that the learned Magistrate erred in finding that s 424A(3)(b) applies with regard to evidence given by us at the hearing.  The appellants respectfully assert the inconsistencies and lateness of our claims were (sic) form part of the reason for the rejection of our claims.  The inconsistencies and lateness may constitute ‘information’ for the purpose of s 424A of the Act, if those inconsistencies and lateness were part of the reasons for the decision.  SZEEU v MIMA …

    2.        The appellants submit that in this particular case that:

    (a)the inconsistencies and lateness of our claim did not constitute ‘information’ for the purpose of s 424A of the Act.

    (b)such information did not fall within the exceptions referred to in sub section 3(b) of the Act.

    2.The Tribunal did not accept that the applicant-wife was sacked.  The Tribunal contends ‘it is unremarkable to the Tribunal that a Principal of a school would need to make such judgments in relation to the teaching staff of the school …  The Tribunal does not accept this explanation’ …  Again the appellants contend that such finding triggers the obligation under s 424A of the Act.”

20. These submissions appear to be based on a misunderstanding of the Federal Magistrate’s reasons.  When the Federal Magistrate dealt with s 424A(3)(b) in para [29] of his reasons he was not referring to any complaint by the appellants that the Tribunal had disbelieved them because they had made claims at the hearing before the Tribunal which had not been made in their original application.  There can be no doubt that the Tribunal was obliged, consistently with the Full Court’s decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, to give them written particulars of any “information” that it considered would be the reason, or part of the reason, for affirming the decision under review and that the Tribunal was not relieved of this obligation, insofar as that information consisted of material contained in the original application, by the provisions of s 424A(3)(b). In para [29] of his reasons the Federal Magistrate was confining his attention to “information” which did fall within s 424A(3)(b), namely, “information provided in oral evidence by the [female appellant].”

21. The Tribunal had, in its reasons, drawn inferences, adverse to the appellants, because they had made a series of claims at the hearing which they had not made when they first applied for protection visas.  After the hearing (and six months before it handed down its decision) the Tribunal had complied with the obligations, imposed on it by s 424A(1) of the Act, and specifically invited further submissions by the appellants as to why they had not mentioned these matters prior to the Tribunal hearing.  No response was received from the appellants.  The learned Federal Magistrate had referred to these events earlier in his reasons (see at [5]-[8]).

22. It follows that, although the appellants submit that the lateness of their claims constituted “information” for the purposes of s 424A(1) of the Act, the Tribunal did not make a jurisdictional error by failing to meet its obligations under that sub section.

23. The appellants’ written submissions also referred to the Magistrate’s finding that there was insufficient material before him to make any finding of apprehended bias on the part of the Tribunal.  Specifically the submission reads:

    “4.The learned Magistrate felt that there may be an argument for apprehended bias.  Given the fact we were unrepresented at all levels of the proceedings, as a model litigant the Minister may not oppose this honourable Court grant leave to us to this point and other points rose (sic) in the notice of appeal.”

24. In his reasons (at [25]) the Federal Magistrate had noted an “indication” on the part of the female appellant that the demeanour of the Tribunal member had suggested to her that the Tribunal was not giving serious consideration to the appellants’ case.  The male appellant had said that he shared this concern.  That was as far as the matter was taken by the appellants before the Federal Magistrate.  No allegations of apprehended bias were made by the appellants to the Tribunal.  Apprehended bias was not relied on as a ground when the appellants sought review by the Federal Magistrates Court.  Even making due allowance for the fact that the appellants were unrepresented, there was no basis on which the Federal Magistrate could have concluded that an allegation of apprehended bias had been made out.  There was, as he found, insufficient material before him to allow him to so determine.  On appeal to this Court the appellants contended that the Federal Magistrate was mistaken in stating that there was insufficient material before him to establish apprehended bias.  No attempt has been made to explain why it is said that he was in error or to remedy the deficiency which he identified.

25. The grounds contained in the notice of appeal to this Court also alleged error on the part of the Federal Magistrate in that he is said to have ignored the fact that the Tribunal had not considered the appellants’ “integer” claims.  There is no substance in this ground.  The learned Magistrate acknowledged the ground and dealt with it in his reasons at [13], [17], [19] and [30].

26. The other grounds of appeal to this Court do not raise allegations of jurisdictional error.  They seek to challenge factual findings informed by the Tribunal’s assessment of the appellants’ credit or, in one instance, seeks to impugn a finding which the Federal Magistrate did not make.

27. The appeal should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        13 November 2007

The appellant appeared in person
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 2007
Date of Judgment:	13 November 2007