MZXRS v Minister for Immigration
[2008] FMCA 1211
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXRS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1211 |
| MIGRATION – Judicial review of refusal to grant protection visa – whether tribunal failed to make relevant enquiries – relevant considerations when considering reasonableness of tribunal conduct. |
| Migration Act 1958, s.414 |
| M164/2002 v The Minister [2006] FCAFC 16 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1. Minister for Immigration v Le [2007] FCA 13 18; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112 Minister for Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; (2003) 73 ALD 1 Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; (1985) 65 ALR 549; (1985) 7 ALN N79 SZICU v The Minister for Immigration [2008] FCAFC 1; (2008) 100 ALD 1 SZJBA v The Minister for Immigration [2007] FCA 1592; (2007) 164 FCR 14; (2007) 98 ALD 270 WAGJ v Minister for Immigration [2002] FCAFC 277 Wickramasinghe v The Minister for Immigration [2005] FMCA 1558 |
| Applicant: | MZXRS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1047 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 March 2008 |
| Date of Last Submission: | 7 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms Latif |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
The applicant pay the respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1047 of 2007
| MZXRS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal with respect to his protection visa application. The applicant is a 28 year old citizen of India who entered Australia on 27 February 2005 on a student visa. On 9 May 2006, the applicant applied for a protection visa. This application was refused on 23 May 2006 by a Delegate of the Minister. Following the refusal, the applicant applied to the Tribunal for review of the Delegate's decision on 21 June 2006. The Tribunal affirmed the Delegate's decision on 31 May 2007.
The applicant's claims are set out in some detail in the Tribunal decision from pp.4 through to 11. The Tribunal then goes on to discuss the Tribunal hearing on 5 April 2007, and refers to a letter pursuant to s.424A on 13 April 2007 inviting the applicant’s comment on information sent to him, the applicant's response and a large number of documents (which are summarised from pp.28 to 33 of the decision).
After considering this material, the Tribunal again wrote to the applicant pursuant to s.424A of the Act on 8 May 2007. Of concern to the Tribunal, on the second occasion it sent a s.424A notice, was:
a)independent information indicating that it is easy to obtain false documents in India;
b)the applicant admitted that his student visa contained incorrect information and false documents;
c)that many of the documents of support were from 12 months after lodging the protection visa claim and over two years after the applicant's arrival in Australia on 27 February 2005;
d)that many of these documents came from family members and therefore would have been likely to have been available earlier; and
e)that many of the documents contain spelling errors relating to Indian words.
On 21 May 2007, the applicant's adviser responded, advising that the documents were genuine and that spelling errors were common from those who prepared the documents whose first language was not English. Most significantly, the Tribunal was invited to contact the authors of each of the documents directly in order to confirm the veracity of the documents.
The Tribunal then traversed Country Information from pp.35 to 37 before setting out its findings and reasons. The Tribunal did not accept many of the aspects of the applicant's claim, such as the claim that his father withdrew from politics, that he had been beaten in Munger in November 2001, that he was forced to move to other parts of India to avoid harm, or that he or his family members were threatened. The Tribunal also did not accept that the applicant was beaten in New Delhi in July 2004.
However, the Tribunal did accept that the applicant had some injuries and illnesses but not that they were caused by attack by political opponents (see p.43). The Tribunal noted that the applicant had conceded that false documents were provided in support of his student visa, although noted that this – of itself – did not entitle the Tribunal to dismiss the documentary evidence provided by the applicant in support of his protection visa. The findings of the Tribunal central to this application are as follows (from p.44):
The Tribunal has carefully considered the content of the statements on the basis that they have been provided by the various individuals named in the statement, individuals with whom the applicant or his family have some relationship or association. In circumstances where [The Tribunal] has had the opportunity to consider a large number of written statements and to weigh these with a significant quantity of other evidence, the Tribunal has not found it necessary to contact each deponent directly.
The Tribunal considers a number of other factors to be inconsistent with the information as to the harm experienced by the applicant in the past and the threat to the applicant and his father. In particular, the applicant himself, in spite of problems and difficulties referred to in the various letters and statements, returned Patna in Bihar state for an operation shortly before his departure for Australia.
The Tribunal considers that the applicant has not provided a satisfactory explanation as to why, if he and his father, had problems of the type described in the statements, they did not seek the assistance of the Bihar authorities. Nor does the Tribunal accept on all the evidence that the applicant was a person of such political prominence that he would have been pursued in various places over such a sustained period in the way suggested in the information in many of the statements.
Having carefully considered the material in the statements in the light of all the available evidence, the Tribunal does not consider that this material outweighs the significant difficulties with the applicant's evidence as set out above. The Tribunal does not accept that the applicant has been harmed by political opponents in the past, that he and his father have been harassed, threatened or otherwise targeted by political opponents in the past, or that the applicant was forced to move around India or, indeed, to leave India because of a threat of harm at the hands of political opponents.
The grounds of the application are as follows:
(1) The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or essential precondition to or an inviolable limitation or restraint upon this power and its jurisdiction necessary for the existence of the satisfaction required by s. 65 to grant or refuse the applications and its power to conduct a review under s.414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
(i) in rejecting the authenticity of a large number of original documents which on their face were authentic and/or genuine and were important pieces of objective evidence the Tribunal ignored relevant material and failed to properly consider the claims of the applicant and/or it failed to act judicially and/or denied the applicant procedural fairness and/or there was ostensible bias on the face of its reasons in purporting to dismiss the documents from consideration where the material therein supported the applicant's case in substantive respects and no ground for such a cause was provided by the documents on their face.
(ii) In the circumstances of the case the Tribunal was under a duty to make further enquiries and/or have further enquiries made, having been put on notice that the named individuals who made the statements who were contactable by telephone could confirm the contents of their statements or letters and in view of their implicit willingness to be contacted to confirm the facts contained in them. To proceed to a decision without making any attempt to obtain that information was so unreasonable as to vitiate the exercise of the decision making power and/or was a breach of the rules of natural justice and/or was an improper exercise of power.
The appeal was argued on the basis that the Tribunal erred in dismissing the evidence contained within the documents. It was further alleged that the Tribunal failed to analyse the written evidence but dismissed the material in general terms. Secondly it was argued that the Tribunal were under an obligation to make enquiries of the witnesses, interview them, and put the propositions, contrary to the witnesses' evidence to the witnesses to allow them to comment upon those propositions.
Ground 1 - Rejection of the Statements
There can be no doubt that the Tribunal had careful regard to the contents of the various witness statements in that they are summarised over pp.28 to 33 of the Tribunal decision. Each one is identified in a separate dot point. Some summaries are more than half a page and others are several lines. The Tribunal then went on to weigh this evidence against the Tribunal's findings with respect to the evidence of the applicant concluding, that it did not outweigh the significant difficulties with the applicant's evidence.
Whilst the Tribunal's reasons in this regard could have been more elegant, it appears clear that the Tribunal weighed the evidence as a whole, that is the material in the written statements and the evidence of the applicant, together with the circumstances, the inherent likelihood of the claims, and the Country Information, in coming to a view as to what claims the Tribunal ultimately accepted. In this regard I note that the Tribunal reasons should not be read with an eye finely attuned to error, as was pointed out by the High Court in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1.
The approach by the Tribunal was to weigh a large amount of evidence and decide what material it accepted. Ultimately these are questions of fact for the Tribunal. The Tribunal has turned its mind to the various factual materials and weighed them in the balance. For an example of similar arguments see Minister for Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; (2003) 73 ALD 1.
The Tribunal’s reasons make sense, and whilst the Tribunal did not pick over each statement in detail, the decision, at 45 pages, traverses the material to a considerable extent. The decision of the Tribunal is not required to traverse every single piece of evidence but provide an explanation for the views of the Tribunal touching upon the significant matters placed before it. I am not satisfied that the applicant has demonstrated that the Tribunal has failed to consider the evidence in the context of this case.
It was argued that the Tribunal had rejected documents as false when there was no basis for doing so. Counsel for the applicant relied upon M164/2002 v The Minister [2006] FCAFC 16. In that case Lee J said, at paragraph 67 to 69:
[67] It should be observed that the ultimate decision in Singh turned on limitations of the grounds for an application to this Court for an order of review under s 476 of the Act, as it then stood, and did not consider whether constitutional writs may issue for “jurisdictional error” occasioned by failure of the Tribunal to act in the manner authorised by the Act. (See also: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ, McHugh J at [51]). It is to be noted in passing that the ground for the application for the issue of constitutional writs in Eshetu was restricted to “Wednesbury unreasonableness” and “jurisdictional error” was not relied upon. (See: Eshetu per Gleeson CJ, McHugh J at [39]–[45]; Gaudron, Kirby JJ at [102], Gummow J at [107], [145]–[147]).
[68] The implied finding underlying the Tribunal’s decision was that the appellant and her husband had constructed an elaborate fraud before they left Sri Lanka. If that were so there was substantial public interest in having that fraud exposed and, it may be assumed, a particular interest on the part of the Minister in obtaining information on whether the appellant and her husband had fabricated the documents or had obtained them from a source which manufactured such materials on demand, a circumstance of considerable importance to due administration of the Minister’s Department.
[69] That is to say, the confluence of the need for the Tribunal to provide a fair proceeding to the appellant with the public interest in an inquiry being undertaken into the provenance of the documents, made plain the reasonableness of the Tribunal exercising a power to have the Secretary to arrange for such an inquiry to be conducted. The Tribunal was directed by the Act to undertake inquisitorial procedures on behalf of the Executive and was empowered to take such steps necessary for that purpose whilst observing the requirements of procedural fairness. (See: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [23]–[24], [26]).
In the same case, Tamberlin J said, at 118:
[118] I consider that the Tribunal did not properly deal with the claims made by the appellant in this matter. This is because of the critical role played by the finding on credibility and the importance of the letters, which, on their face, are reliable and supportive of the appellant’s case, and because of the failure of the Tribunal to make a number of simple phone calls to verify the authenticity of the documents. The failure of the Tribunal to deal with the case sought to be made by the appellant and the documentary evidence called for findings by the Tribunal as to the authenticity and weight of the documents. This was not done. To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to “implausibility” support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.
In this case the Tribunal accepted that the documents were genuine, saying:
The Tribunal has carefully considered the content of the statements on the basis that they have been provided by the various individuals named in the statement, individuals with whom the applicant or his family have some relationship or association. In circumstances where [The Tribunal] has had the opportunity to consider a large number of written statements and to weigh these with a significant quantity of other evidence, the Tribunal has not found it necessary to contact each deponent directly.
Thus, this case is different to that of M164/2002 v The Minister [2006] FCAFC 16 in that the Tribunal did not simply dismisses the statements as document fraud, but rather took into account the evidence contained within the statements as evidence provided by the various persons on behalf of the applicant.
The balance of the applicant’s arguments are answered by reference to the Tribunal’s reasons set out in para [6] above, that demonstrate the Tribunal made findings based upon inconsistencies in the conduct of the applicant, and an assessment of his actual political involvement, not simply findings that events were ‘implausible’. I am not satisfied that the applicant has established that the tribunal failed to properly consider the evidence in the statements, nor that it could be said that the reasons are such as to give rise to any apprehended bias in the sense discussed in M164/2002 v The Minister [2006] FCAFC 16.
Ground 2 – Failure to make enquiries
Generally speaking, the Tribunal is under no obligation to make enquiries in exercising its power under the Act, see WAGJ v Minister for Immigration [2002] FCAFC 277, 24 -25.
Counsel for the Minister says that when one has regard to reMinister for Immigration & Other, Re; ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209; (2000) 74 ALJR 1404; (2000) 21(16) Leg Rep 2, Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16 and Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; (1985) 65 ALR 549; (1985) 7 ALN N79 at 169 the test must be whether or not it is apparent that material is readily available which is centrally relevant to the decision to be made.
The applicant relied upon the decisions of Wickramasinghe v The Minister for Immigration [2005] FMCA 1558, SZJBA v The Minister for Immigration [2007] FCA 1592; (2007) 164 FCR 14; (2007) 98 ALD 270 and Minister for Immigration v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112.
The starting point for consideration of this issue is Prasad v Minister of Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 where Wilcox J said:
55. I have already expressed the view that, in evaluating the decision, it is open to the Court to have regard to any information which was not in fact before the Minister, but which is proved in evidence and in relation to which the Minister acted unreasonably in not making inquiries. In this case little new material emerged at the hearing before me; some further information about the contraction of the marriage and the lay-out of the matrimonial bedroom, which I have already summarized, explanations of some of the "inconsistencies" and the sworn evidence of the applicant's brother, Sarda Prasad, corroborating the assertions which the applicant and his wife had put before the Department. All of this would have been available to the Minister had he enquired. Having regard to my finding in relation to the material actually before him, it is not strictly necessary for me to decide whether the Minister acted unreasonably in not enquiring. I do think that it was unreasonable not to seek explanations of the inconsistencies. I doubt that it was unreasonable for him not to seek out the brother's information; this was for the applicant to provide. In any event, the new material does not significantly alter the position.
In Minister for Immigration v Le, Kenny J said:
[77] This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh’s residence that day.
[78] These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal’s review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le’s application was a matter for it to decide in conformity with the Act and the Regulations.
[79] Accordingly, the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense. I would uphold the Federal Magistrate’s decision on this ground.
In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 Tamberlin, Finn and Besanko JJ described the test as ‘a failure to inquire into readily available and centrally relevant information’.
SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 Allsop J described the test as ‘in certain exceptional cases, a failure to make some inquiry … if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision’
French J, as his Honour then was, in Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 put the test in these terms:
[30] There may be cases in which a decision maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision-making power improperly…
Importantly, this is not a case where the Tribunal failed to make straightforward enquiries, such as telephoning the deponents of the statements in order to ascertain whether or not the statements were on their face fraudulent documents. The Tribunal accepted that the documents were genuine documents and weighed them in the balance, determining the evidentiary weight it could attach to the evidence of the persons concerned as against the other evidence that was before the Tribunal.
In deciding whether the conduct of the tribunal in not making a particular inquiry was unreasonable (in the relevant sense) the relevant considerations will almost invariably include:
a)Whether the enquiry was reasonably straightforward;
b)The significance of the material to a relevant issue, and the importance of that issue to the outcome; and
c)The nature of the evidence that it is expected to obtain through making the enquiry.
In considering whether there is a reasonably straightforward enquiry that was open to the Tribunal, that was readily available and that was likely to be of significance assistance to the Tribunal one must consider what could be expected to be achieved by telephoning each of the deponents. Whilst the telephone call could have confirmed that the documents emanated from the deponents (fact already accepted by the Tribunal), it would not have, in a practical sense, been effectively dispositive of the question of whether or not the versions given by the various deponents were reliable and ought to be accepted.
The Tribunal would still have been in the position of having to weigh the evidence of the deponents of the statements against that given by the applicant and the circumstances of the particular application. The deponents were not readily available to give evidence before the Tribunal, but could only be heard by way of telephone. It is not apparent on the face of the material that telephoning the witnesses or deponents would have been likely to provide significantly better evidence than the Tribunal had before it.
Indeed, it was not unlikely that despite telephone conferences with a large number of persons the Tribunal would not have been significantly advanced in its fact finding. It is not the case that every witness must be heard orally by the Tribunal. It is a matter for the decision maker to determine as one of the many aspects of the Tribunal hearing.
The way in which the Tribunal has conducted the hearing in this case does not appear to me to demonstrate jurisdictional error. It is certainly not so unreasonable that no reasonable decision maker would have embarked upon a similar course.
In the circumstances I therefore find that the applicant has not established any ground for judicial review.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 29 August 2008
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