MZXPR v Minister for Immigration - [2007] FMCA 1800

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1800

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – application lacking in merit – dismissed accordingly.

Migration Act 1958 (Cth), s.424A

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
QAAN/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 359

Applicant:

MZXPR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 365 of 2007

Judgment of:

Burchardt FM

Hearing date:

23 October 2007

Date of last submission:

23 October 2007

Delivered at:

Melbourne

Delivered on:

2 November 2007

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr G. Gilbert

Solicitor for the First Respondent:

DLA Phillips Fox

ORDERS

The application be dismissed.
The Applicant pay the costs of the First Respondent, fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 365 of 2007

MZXPR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 28 March 2007, the Applicant filed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated

1 March 2007. The facts and background to the matter are clearly set out in paragraphs 2 to 7 of the contentions of fact and law of the First Respondent which I incorporate by reference. It is not, however, necessary to repeat those facts in detail because of the nature of the application.
In her application, the Applicant detailed six grounds. Some of these related to an alleged failure on the part of the Tribunal to comply with the terms of s.424A of the Migration Act 1958 (Cth) (“the Act”). Others are plainly just matters of impermissible merits review.
One of the matters raised by the Applicant in the grounds in her application was a complaint that there was not a tape of the hearing. She took issue with the assertion made by the Tribunal in its reasons for decision that she had told the Tribunal that she had come to work in Australia.
In her affidavit filed contemporaneously with the application, the Applicant asserted in paragraph 2:
“I will file an affidavit saying what I remember of the hearing later on.”
The First Respondent's response, amongst other things, opposed the application on the basis that no reasonable cause of action was shown.
In a further affidavit filed on 1 May 2007, the Applicant again referred to the fact that there was no tape-recording of the hearing and added three further paragraphs which raised again the issue of the absence of tapes, but otherwise clearly in my view simply seek to revisit the findings of fact made by the Tribunal.
On 14 August 2007, the Applicant filed contentions but these do not add anything to what the Applicant had already put.
At the hearing before me today, the Applicant indicated that she did not wish to add to the materials she had filed, either by supplementary written material or by oral submission. The interpreter asserted to me, I assume translating what the Applicant said, that it was all in the materials.
The First Respondent was likewise prepared to rely in those circumstances on the written submissions he had filed on 28 September 2007. For reasons that will be apparent, much of what follows in this decision follows closely, or in some instances paraphrases, those written submissions.
As the First Respondent’s contentions rightly observe at paragraph 8, the Tribunal considered the Applicant's claims under subheadings: ethnicity, status as a single woman - particular social group - and dispute with ex‑partner and ex-partner's mother. The Tribunal noted that the Applicant was unable to provide any examples of the discrimination she claimed to have experienced on account of her ethnicity and having referred to country information, the Tribunal found at CB 128 that the Applicant did not have a well‑founded fear of persecution based on her race or ethnicity.
Once again, to paraphrase the First Respondent’s contentions, the Tribunal accepted that the Applicant could be a member of a particular social group consisting of a single woman in Thailand or a single woman of mixed Thai/Chinese ethnicity but did not accept that the Applicant had experienced such discrimination or mistreatment.

It did not accept that the Applicant had experienced discrimination or other mistreatment because of her membership of a particular social group (see CB 129).
The Tribunal put to one side the question of whether the Applicant's claim concerning her child was convention related. It did not accept

as a threshold the issue that there was an issue between the Applicant, her former partner and his mother (see CB 129). It did not accept the Applicant's chronology of events as credible and this was not surprising when, on the chronology, she would have moved

to Bangkok when she was 13 years old but had previously claimed

to have moved there when she was 16 years old. The Tribunal made

a number of other adverse credit findings on the material that the Applicant provided to it.
I would interpolate to say that those credit findings were not only open to the Tribunal but in respect of the chronology, and for example in respect of the substantive distance from where the ex-partner and his mother lived to Mae Sai where the Applicant lived, that those findings were not in any way surprising.
The Tribunal was satisfied the country information showed that Thailand had an effective functioning law enforcement system and that there was no evidence before it to suggest that the Applicant would be afforded any lesser state protection than any other Thai national. This sufficed to dispose of the Applicant's claim that she had been subjected to extortion or other mistreatment by the Thai authorities.
I accept the submission made at paragraph 16 and following of the First Respondent’s contentions of fact and law that the Applicant's grounds and contentions seek impermissibly to revisit the merits of her case. I accept, as the First Respondent submits, that the Tribunal's decision is marked by considerable attention to detail and is ultimately in large part determined by the Tribunal's failure to accept the Applicant's claims to be credible. These were matters plainly within the Tribunal's province and were clearly open to the Tribunal on the material before it.
The Applicant's complaints that the First Respondent failed to comply with s.424A of the Migration Act 1958 (“the Act”) are likewise misconceived. The Tribunal was not required to give the Applicant notice of matters of evidence which it was considering as part of its own appraisal of the case before it, as has been recently confirmed by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
One of the Applicant's grounds of review is that the Tribunal failed to consider her claim, failed to understand the claim and/or failed to ask the correct question. Once again I accept the submissions of the First Respondent, paragraphs 21 to 22, that there is no articulated basis for these complaints and nor is there any error in the way in which the Tribunal went about its task.
The Applicant's complaint about the lack of a tape-recording is misconceived. The Tribunal did not reject the Applicant's request for transcript but provided a transcript which it considered to be an accurate record of the proceedings. This document was based on the notes, it would appear, of the Tribunal member. The Applicant was given an opportunity to comment on the transcript and did so and raised only one factual issue which was that she did not believe she had given evidence about coming to Australia to work. It is correct, as the First Respondent submits in his contentions, that following her reply, the Applicant was given another opportunity to provide any information she wished.
As the First Respondent correctly points out, the Tribunal is under no such obligation to record the hearing. Furthermore, the decision of Spender J in QAAN/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 359 appears to me to dispose of this issue. At [11] Spender J said:
“In my opinion, the rules of procedural fairness do not require that an intelligible aural record of the proceedings in the RRT be made. See Ex parte Smith; Re Russo [1971] NSWLR 184. Even a failure to follow proper recording procedure would not provide a basis for the Court to conclude that the applicant had been denied procedural fairness.”
Furthermore, even if one did accept that the Applicant was correct in asserting to the Tribunal that she had not told the Tribunal that she came to work, this is not a matter of any consequence. While the Tribunal referred to this aspect of her evidence in the Claims and Evidence section of the decision (see CB 123) it was not otherwise revisited in the Tribunal's reasons. It is not in any way apparent that this observation, if it was incorrect on the part of the Tribunal, was dispositive to the proceeding.
One should further say that it is not inherently likely that the Tribunal would have invented so adverse a remark on the part of the Applicant.
In all the circumstances, the application is without merit and must be dismissed. The Applicant must pay the First Respondent's costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate

Date: 2 November 2007