MZYAA v Minister for Immigration
[2008] FMCA 1304
•26 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYAA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1304 |
| MIGRATION – Application for judicial review – allegations of failure properly to consider materials and submissions – allegations of bias. |
| Migration Act 1958, s.65 |
| WAGU v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCA 912 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham 168 ALR 407 Fuduche v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 515 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | MZYAA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 339 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 25 August 2008 |
| Date of Last Submission: | 25 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms R.M. Germov |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr R.C. Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
That the application filed 20 March 2008 be dismissed.
That 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 339 of 2008
| MZYAA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Although the application originally filed in this proceeding alleged a number of errors on the part of the Refugee Review Tribunal (“the Tribunal”), there are three matters that are now pressed on the Applicant's behalf:
a)that the Tribunal failed to take into consideration relevant considerations;
b)that the Tribunal imposed an impermissible burden of proof upon the Applicant;
c)bias.
For the reasons that follow, I have come to the conclusion that none of these three grounds are made out and that the application must be dismissed.
The Alleged Failure to Take Into Account Relevant Considerations
As advanced in the Applicant's contentions of fact and law, upon which counsel was content predominantly to rely without further elaboration, three matters were raised under this heading.
The first was the failure of the Tribunal to make findings about the matters set out in the Applicant's October 2007 statutory declaration, his January 2008 declaration and his solicitor's submissions of
29 January 2008.
The second was the failure of the Tribunal to deal with the independent evidence produced by the Applicant in support of his claims (this is not articulated in terms in the contentions of fact and law but it clearly refers to the material provided by the various religious witnesses who provided support for the Applicant and to the evidence of his treating medical practitioner).
The third error in this regard was said to be the reliance by the Tribunal on only one source of country information, namely the United States State Department's International Religious Freedom Report for 2007, and the failure of the Tribunal to refer to the report of the Special Rapporteur's report on Freedom of Religion or Belief, Mission to Nigeria, 7 October 2005.
It should be noted that the Tribunal did not fail to refer altogether to the claims set out by the Applicant and his representative in October 2007 and January 2008. The Tribunal in my view accurately set out the claims and evidence before it and the further materials provided by the Applicant in October 2007 and January 2008, both by himself and by his representative at CB 233-239. Those passages in my view form an accurate and fair summary of what the Applicant put.
What did happen, however, was that the Tribunal did not make findings about all these issues when it came to its findings and reasons at pages CB 244-245.
What in fact happened was that the Tribunal rejected the entirety of the Applicant's evidence and case because of the adverse credit findings made at CB 244-245.
The First Respondent submitted that in the light of those adverse credit findings, it was not necessary for the Tribunal to make formal findings in respect of any or all of those matters in respect of which it did not make findings.
Much of the argument turned upon the extent to which it was open to the Tribunal, having made credit findings in relation to some matters, to make credit findings, as it were, across the board.
In WAGU v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCA 912, French J (as his Honour then was) said at [34]:
“It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.
35: In Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision‑maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.....
36: Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case, a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision‑maker, in this case the tribunal, to invite comment upon its thought processes on the way to decision.”
The approach adopted by the High Court in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 has also been adopted by Nicholson J in WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45], where his Honour said:
“It is open to a Tribunal which is convinced that a principal witness is fabricating a story to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons for disbelieving the principal witness: S20/2002 at 63, [12] per Gleeson CJ; at 70, [49] per McHugh and Gummow JJ.
Here, what happened is that the Tribunal roundly disbelieved the Applicant because of the matters as set out in the dot points in CB 244-245.
Each of the matters there set out are findings that in my view it was open to the Tribunal to make. They were in the scheme of things important matters which on any view were not merely peripheral to the issues, including the very important credit issues that were before the Tribunal.
While two of the credit findings set out in the dot points at CB 244-245 are arguably merely credit issues, the first two dot points are not.
The financial resources that the Applicant claimed to dissipate were claims arising out of and intimately connected with his claim to have been sponsored by an Islamic organisation. His claim was that it was his conversion that led to the withdrawal of these funds.
Similarly the second dot point once again went directly to the claim that he had in fact been sponsored by a Muslim association.
It was the Applicant’s case that his conversion both led to the withdrawal of his funds and also to the death threats and fear of harm that gave rise to his convention claim.
The Tribunal made express findings contrary to the Applicant in respect of these matters and in my view this was a conclusion at which the Tribunal could properly arrive based on the materials before it.
Once the Tribunal found that it did not believe the Applicant in relation to these issues, it was plainly not illogical for the Tribunal to form the view that the entirety of the Applicant’s evidence about his conversion was untrue.
I accept the concession made by counsel for the First Respondent that the Tribunal could have gone about this in other ways. It could for example have more closely tested the Applicant’s knowledge of Christianity.
Nonetheless, the manner in which the Tribunal went about its task was pre-eminently a matter for it, and I do not believe that the Tribunal’s conclusions overall can be said to be such as to give rise to jurisdictional error in this regard.
Once the Tribunal decided that it simply did not believe the Applicant, it was open to the Tribunal simply not to believe any of the rest of his evidence in accordance with the decisions to which I refer above. The reasons the Tribunal gave were sufficient (see McHugh J in
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham168 ALR 407 at [65]-[67]).
This finding is also sufficient to dispose of the arguments advanced somewhat briefly by the Applicant as to the three alleged integers of his claim, namely the question of his community profile and the effects of his conversion upon that, the risk that he would not receive adequate state protection and the risk of death because of his conversion.
Insofar as the Tribunal was asserted to have failed to pay any attention to the independent evidence provided by the Applicant, this refers as I have said, to various religious persons having pastoral care of the Applicant and to his treating medical practitioner.
The Tribunal expressly referred to the religious evidence, if I may so describe it, as CB 244 in these terms:
“Although he presented letters from clerical persons in Nigeria and Australia supporting his claims, the Tribunal considered these are outweighed as evidenced by the serious flaws in the applicant's evidence.”
At CB 245, the Tribunal referred to the medical evidence in these terms:
“It was said in his support that the applicant had problems with his memory due to stress and anxiety that might affect his evidence, but this was not apparent during the hearing. The difficulty with the applicant's evidence was not one of gaps, confusion or lack of clarity, but of stark inconsistencies.”
This does not seem to me to fall into the error identified by counsel for the Applicant in the case of Fuduche v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 515. The Tribunal was not disbelieving of the Applicant's medical practitioner. The Tribunal was rather saying that whatever illness the Applicant might have been suffering from had not been observed by it to prevent the Applicant giving his evidence.
The third and final criticism made under this heading was the Tribunal's approach to country information.
I note that the report of the Special Rapporteur was in 2005 and was prepared some time before the 2007 report upon which the Tribunal relied. In this regard, I accept the submission made by counsel for the Minister that the selection and assessment of such material are entirely matters for the Tribunal. In this regard, I adopt with respect the observations of the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] where the Full Court, composed of Gray, Tamberlin and Lander JJ said:
“Both the choice and the assessment of the weight of such material (country information) were matters for the Tribunal.”
Although that case turned on its own circumstances, those are observations of general import and are in my view applicable here.
The Alleged Imposition of a Burden of Proof
Two points were made in this regard by the Applicant. The first was that the Tribunal was said to have required independent corroboration concerning the Applicant's claims about his conversion to Christianity and the dissipation of his funds that he asserted. The second was that the Tribunal was alleged to have deprived itself of jurisdiction by imposing a requirement that formal baptism was necessary for the Applicant to be at risk of persecution as an apostasy from Islam.
It should be noted that the Migration Act 1958 (“the Act”) requires that the Tribunal must achieve a positive state of satisfaction pursuant to s.65 of the Act that the relevant criteria have been satisfied before granting a visa and must, if not so satisfied, refuse to grant the visa.
What the Tribunal did here was to say no more than that:
“It was not readily believable that the various financial resources that he claimed at the time of his occupational trainee visa had all disappeared by the time he got here, and evidence was not provided in support of his claim.”
That assertion seems to me to be unobjectionable. It accords with the facts as they stand. It is clear that no evidence external to the Applicant was provided.
The Tribunal did not at any stage in its reasons for decision assert that it was necessary for the Applicant to have provided independent evidence of his conversion to Christianity or that baptism was necessary for persecution to occur. Indeed, the Tribunal accurately recorded the evidence put forward from Nigeria by the Applicant's pastor but went on for the reasons already alluded to at CB 244 to reject it. The Tribunal made no reference to the baptism point in its findings and reasons at CB 244-245.
The Allegations of Bias
Bias is a serious matter which must be firmly established, (see Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 at [26] per Sundberg J). Here, a number of aspects of the proceeding were relied upon to ground what was said to have been a reasonable apprehension of bias.
In part, this was based upon the failure of the Tribunal to deal with the various matters that have already been addressed. The Applicant also relied upon the failure of the Tribunal to deal with the Special Rapporteur's report and a failure as alleged to comply with the credibility guidelines set out at CB 43.
Similarly, the failure to refer to the psychiatric report was said to be part of the picture.
The Applicant also relied upon evidence from both the Applicant himself and his representative, Ms Psihogios-Billington, as to what actually happened at the Tribunal. The Applicant's evidence can be summarised as saying that he felt the Tribunal member's demeanour was hostile to him. He complained of the failure to ask him questions about his Christianity, his fear of persecution and the like, and the fact that the questioning only lasted for about half an hour.
He also complained that at various times during the proceeding, the Tribunal member turned her whole body away from him and did not look at him while he was talking.
Ms Psihogios‑Billington's affidavit annexed a copy of the transcript.
It went on at paragraph 9 to assert a number of alleged errors on the part of the Tribunal in dealing with the evidence (all of which are dealt with already in these reasons for decision) and repeated that at various times, the Tribunal member turned her whole body away from the Applicant for several minutes from time to time. It was asserted that while facing away from the Applicant, the Tribunal member did not write anything down while he was responding to her questions.
There are a number of other criticisms of the Tribunal made in Ms Psihogios‑Billington's affidavit but it should be noted that, as with the Applicant, much of the material concerned is of its nature a matter of subjective impression.
At the request of the Applicant, I have both read the transcript and listened to the audio disc of the Tribunal hearing.
The transcript of the proceeding does not in my view show on its face either unfairness to the Applicant or a predisposition amounting to a mind not open to argument.
Similarly, the audiotape does not show any overt hostility on the part of the Tribunal. Indeed, having listened to the disc, I formed the view that the Tribunal member had clearly read the file, although she did not immediately recall every aspect of it.
Throughout the Tribunal hearing, and not in fact fully revealed by the transcript, there are interjections from the Tribunal of the sort that human beings ordinarily make in the course of interactive discussions with one another. These to my mind (and bearing in mind that this is also a matter of impression) suggest that the Tribunal member was listening attentively to what it was the Applicant said.
Contrary to the material contained in the affidavits, the Applicant's answers are coherent and to the point and show no undue signs of stress, with the exception of the entry on page 17 of 17. The large paragraph attributed to the Applicant on that page does suggest a certain weariness and distress on his part but that, it should be emphasised, is the only passage of the transcript that seems to me to be properly characterised in that way.
I do not think that the way in which the Tribunal dealt with the Applicant and the materials advanced on his behalf suggest that the Tribunal was not properly prepared to discharge the functions that fell to it.
The reasons for decision of the Tribunal, while clearly antithetical to the Applicant's interests, do not give rise to such a finding.
Likewise, the transcript and the disc do not in my view reveal any improper conduct.
It should be noted that I have not heard from the Tribunal member as to what she would say about whether or not she turned her back on the Applicant.
Even if I accept for these purposes that this was the case, this was at worst a discourtesy and an unfortunate one at that, but it does not give rise to a finding of bias. As Kenny J said in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 AT [81]:
“If a member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards but this conduct will not of itself constitute disqualifying bias.”
It should be noted that having listened to the tape, there would be few passages which could properly be described as a few minutes (as Ms Psihogios‑Billington describes them) during which the Tribunal member would have had time to turn her back and not take notes in the manner described.
I suspect that in the strain of the moment, both the Applicant and Ms Psihogios‑Billington have somewhat exaggerated the periods of any time during which the Tribunal member's back may have been turned.
In any event, the transcript and the tape disc as a whole, taken in conjunction with the Tribunal's decision, do not suggest to me that the Tribunal member can properly be held to have brought a biased mind to the proceeding.
It follows for these reasons that the application must be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 26 September 2008
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