MZXNQ v Minister for Immigration
[2009] FMCA 197
•18 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 197 |
| MIGRATION – Application for judicial review – consideration of alleged jurisdictional errors. |
| Migration Act 1958, s.424A |
| Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 SZIRO v Minister for Immigration and Citizenship [2007] FCA 260 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 |
| Applicant: | MZXNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 548 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 February 2009 |
| Date of Last Submission: | 23 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 18 March 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms E. Latif |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding and thrown away fixed in the sum of $6,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 548 of 2008
| MZXNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 9 April 2008.
The Applicant's amended application filed on 19 August 2008 is very similar and in substance identical to successive paragraphs in his contentions of fact and law (starting at paragraph 10) filed on the same date.
The Applicant appeared in person. His submissions were very brief and I shall return to them later. In the circumstances, I infer that he primarily relied on the documents filed on his behalf by his solicitor.
Because the contentions of fact and law included some matters not set out in the amended application, it seems to me fairer to the Applicant to structure these reasons for judgment in accordance with the errors asserted in the contentions of fact and law and to treat each error contained in the contentions as a ground of review.
I will take the alleged errors seriatim as they are set out in the contentions of fact and law.
Paragraph 9 - Bias
Having referred to the fact that the Applicant has been before the Tribunal four times, the Applicant's contentions of fact and law go on:
“The Tribunal appears in its approach to have taken a certain mindset and that is, it is going to make sure that there will be no grounds for any error in this decision and subsequently, the Tribunal's main premise is that there are good reasons for doubting that the applicant is telling the truth of his or his own family's claimed involvement in politics and therefore it will refute all of his claims.”
The reference to the certain mindset is repeated in other paragraphs.
In substance, this appears to be an allegation of actual bias.
The inference to be drawn is that the Tribunal achieved a state of mind designed to prejudice the Applicant and reject his application.
I accept the submission from the First Respondent that a party alleging actual bias carries a heavy onus which must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 546 per Kirby J). There is nothing in the Court Book which suggests to me that the Tribunal member whose decision is now impugned had a mindset opposed to the Applicant. There is nothing to suggest that the Tribunal's mind was closed to argument and incapable of persuasion.
If the matter is considered in the alternative on the basis of apprehended bias, once again I think that the Applicant fails. I accept once again the submission of the First Respondent that the Applicant has provided no evidence, for example in the form of affidavit or transcript, in support of this ground. The sending of the s.424A letter by the Tribunal on 20 February 2008 gave the Applicant an opportunity to put further materials to the Tribunal which, as counsel for the First Respondent submits, would be likely to be inconsistent with bias. There is nothing in the s.424A letter or the Tribunal's reasons for decision in my view that properly points to the conclusion that a fair‑minded lay observer could reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question before it.
Paragraph 10 - The Residence Issue, No Evidence and/or Failure to Inquire
Paragraph 10 of the contentions of fact and law raises two matters arising out of the Tribunal's consideration of where the Applicant lived in Sri Lanka. The first is that it is said that there is no evidence for the Tribunal to conclude that the Applicant never resided with his grandmother in Piliyandala.
The inaccuracy of that assertion is immediately apparent from an earlier extract in the paragraph which reads, "It is agreed that in his original application and at the hearing, he stated his address as 112 Stratford Avenue, Pamankada, between December 1988 and February 1999."
That assertion on the Applicant's behalf is quite correct. Accordingly, while there was of course other evidence which the Tribunal did not accept, there was indeed evidence before the Tribunal capable of justifying the conclusion at which the Tribunal arrived. The Tribunal therefore did not fall into error, let alone jurisdictional error, in this regard.
The second part of the complaint arises from a letter dated 2 June 2006 from the Grama Niladhari which supported residence in Piliyandala.
I should say by way of introduction that the Tribunal dealt with the evidence of the Grama Niladhari in some detail at paragraphs 81 to 87 of its reasons for decision (CB 435 to 437).
The reasoning there set out discloses no error in my opinion. To the contrary, the Tribunal's assessment of the material seems to me to be entirely appropriate.
Insofar as the Applicant takes issue with the failure of the Tribunal to investigate further, there are two things to be said.
First, the Applicant carried no onus of proof (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [83] per Gleeson CJ and McHugh J). Second, nonetheless as Gummow and Hayne JJ pointed out in the same case:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
That is what it seems to me the Tribunal did here.
Further, the Tribunal does not have a duty to investigate the Applicant's claims, although it can of course seek information pursuant to s.424 of the Migration Act 1958 (“the Act”) (see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [15] per Whitlam, Tamberlin and Sackville JJ. As Heerey J said in SZIRO v Minister for Immigration and Citizenship [2007] FCA 260 at [12]:
“The Tribunal does not have a duty to investigate the appellant’s claims.”
There is a further assertion in the last sentence of paragraph 10 which raises again the issue of bias but for reasons I have already given, I do not think such an assertion can be made out.
Paragraph 11 - Failure to Inquire About the Death of the Applicant's Father
The remarks I have made above in my view deal conclusively with the alleged error asserted in the Tribunal's failure to inquire further.
It should be noted that in the s.424A letter, the Tribunal set out
(CB 395) in some three paragraphs a number of inquiries arising from the various accounts given by the Applicant about this matter. The Applicant was given an opportunity to respond and did so (CB 405 to 406).
The Tribunal's reasoning at paragraphs 88 to 93 (CB 437 to 438) discloses a reasoned consideration of the matters raised. It does not reveal jurisdictional error.
Paragraph 12 - The Identity of the Candidate the Applicant Supported
In substance, this paragraph seeks that this Court review the merits of the finding made by the Tribunal. The Tribunal's finding was clearly open to it on the evidence and does not disclose any jurisdictional error. I do not accept the assertion that the Tribunal “identified a wrong issue in its quest to justify its conclusion that the Applicant was never involved in politics.” The Applicant’s capacity to remember the name of his patron was clearly relevant.
Paragraph 13 - The Weight to be Given to Letters from Politicians in
Sri Lanka
and the Failure to Inquire
In substance, the application under this ground is essentially merits review.
I have already dealt with the issue of failure to inquire.
To the extent that the Applicant complains that the Tribunal relied upon a DFAT report dated March 1999, there is nothing to suggest that the Tribunal fell into jurisdictional error in this regard.
Paragraph 14 - Youth Groups
What the Tribunal found here at paragraph 145 (CB 452) was:
“Having regard to the view I have formed of the applicant's credibility, I do not accept that the applicant himself was involved in political activity as a member of any youth group or wing of the PA, however described, whether in his school, in Piliyandala, in Maharagama or in Nugegoda, or as a supporter of any politician, including Mr Amal Senalankadhikara.”
That was a finding open to the Tribunal to make and does not disclose jurisdictional error in my view.
The answer to the question posited in paragraph 14 of the Applicant's contentions of fact and law is a resounding “yes”. The Tribunal did indeed reject all of the Applicant's evidence and said it was complete fabrication.
Paragraph 15 - Mr Lokuge and Failure to Take Relevant Material into Account
The gravamen of this paragraph was that the Tribunal failed to take into consideration the changes that occurred when Mr Lokuge changed his allegiance from the UNP to the PA party in 2007.
The Tribunal dealt with this issue at paragraphs 111 to 116 (CB 443 to 444). The Tribunal found that the assertions made about Mr Lokuge by the Applicant were recent inventions, prompted by Mr Lokuge's decision to switch sides from the UNP to the PA in January 2007 (paragraph 116).
The Tribunal was clearly very well aware that Mr Lokuge had changed his political party allegiance. The Tribunal member simply did not believe what the Applicant said in this regard.
Paragraph 16 - The Events in June 1994 - Failure to Make a Finding
Here, the complaint made is that the Tribunal allegedly failed to make any finding about the Applicant's injury in 1994. That submission misconceives what the Tribunal found. The Tribunal had already stated in the s.424A letter that it accepted that the Applicant suffered a fracture of his right forearm in 1994 but it indicated it might not accept that this injury arose as a result of an assault by UNP supporters after a political meeting in Maharagama in late June 1994.
At paragraph 146 (CB 452) the Tribunal found:
“Having regard to the view I have formed of the applicant's credibility, I do not accept that he was assaulted when returning home from one of "Amal's" meetings in Maharagama at around midnight in late June 1994. I accept that, as stated in the letter from the general practitioner ... the applicant suffered a fracture of his right forearm in 1994, but I do not accept the account the applicant has given of how he came to suffer this injury.”
It is clear that the Tribunal did indeed make a finding about the injury.
Paragraph 17 - Bias
The fact that three previous hearings of the Tribunal accepted some of the Applicant's claims does not mean that it was incumbent upon the Tribunal from which this application for review is brought to do so. It is not, as the Applicant asserts, evidence of bias, actual or apprehended.
Paragraphs 18 to 23
These paragraphs are in the main either an endeavour to conduct merits review (paragraphs 18 to 21) or merely set out the Tribunal's task in a way that adds nothing to the grounds in this application.
Paragraph 24 - Failure to Consider Changes in Government, Mr Lokuge and the Timing of the Events in Question
For the reasons already given, it is clear that the Tribunal did consider the changes in government, including the position of Mr Lokuge. The assertion that the Tribunal's focus was on the time the Applicant left Sri Lanka and that it did not consider whether the Applicant had a subjective fear of persecution is misconceived in the light of the Tribunal's findings. The Tribunal roundly disbelieved the Applicant. It came to the conclusion he did not have a well‑founded fear of persecution. Although the Tribunal did not state in terms that the Applicant did not have a subjective fear of persecution, in circumstances where the Tribunal found that the Applicant had done nothing to give rise to any such fear, it is perhaps not surprising that the Tribunal did not feel it necessary to deal with this matter in terms.
Paragraph 25 - A Failure to Consider the Question of State Protection
This matter does not arise given the Tribunal's findings. The Tribunal found that the Applicant's circumstances were such that he did not need state protection. Accordingly, once again, it is in no way surprising that it did not deal with that issue.
Grounds Advanced Before the Court
When I invited the Applicant to make any submissions he wished to, he raised the question of Mr Lokuge and the risk of harm from him. As counsel for the First Respondent rightly pointed out, that was a matter already considered and determined by the Tribunal.
At the hearing before me, the Applicant also asserted that Mr Lokuge had killed his father. That is the first time in all this long history that such an assertion has been made in terms. The Applicant has advanced a number of versions of his father's death as recorded in the Tribunal's reasons for decision. None of them, however, have moved to a direct assertion that Mr Lokuge actually killed or was directly responsible for the father's death. Given that this assertion was not before the Tribunal, it follows that it cannot be now admitted as new evidence. (MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J).
In the circumstances, none of the Applicant's claims have been made out and the application must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 18 March 2009
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