MZYBY v Minister for Immigration
[2009] FMCA 144
•7 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 144 |
| MIGRATION – Review of Refugee Review Tribunal decision to affirm delegate’s decision to refuse protection visa – adverse finding on applicant’s credit – grounds of review allege denial of proper hearing, failure to take account of relevant considerations, denial of procedural fairness, unreasonableness and reasonable apprehension of bias – review dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, and 427(6)(a) |
| Associated Provincial Picture House v Wednesbury Corporation [1948] 1KB 223 Minister for Immigration & Anor; ex parte Cassim (2000) 175 ALR 209 MZXRS v Minister for Immigration and Citizenship [2009] FCA 2 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 NADR v Minister for Immigration and Indigenous Affairs [2003] FCAFC 167 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvaddurai v Minister for Immigration and Ethnic Affairs (1994) ALD 347 |
| Applicant: | MZYBY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1071 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 25 February 2009 |
| Date of Last Submission: | 25 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Barry Moshel |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 2 September 2009 is dismissed.
The applicant pay the first respondent’s cost.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1071 of 2008
| MZYBY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 2 September 2008 the applicant seeks to review the decision of the Refugee Review Tribunal (the Tribunal) dated 23 July 2008; which decision affirmed an earlier decision of the first respondent's delegate not to grant the applicant a protection visa.
As set out below, the applicant's visa history is protracted. This is the third review in relation to decisions of the Tribunal.
Background
The applicant is a non-citizen of Australia and a national of Lithuania. He first came to Australia in 2000 on a temporary visa. He returned to Lithuania in 2001 for a period of four months before applying, on his return to Australia, for a temporary business visa. That application was refused.
On 22 February 2002 the applicant then applied for a protection visa which was refused by the first respondent’s delegate on 23 May 2002.
On 17 June 2002 the applicant reviewed the delegate's decision before the Tribunal which, after a hearing on 13 June 2002, confirmed the delegate's decision to refuse to grant a protection visa.
The Tribunal's decision was then reviewed unsuccessfully before this Court, but on appeal to the Federal Court of Australia on 27 October 2006 the Federal Court made consent orders allowing the appeal and ordered that the matter be remitted to the Tribunal for re-hearing and determination according to law.
When the matter was heard for the second time before the Tribunal, constituted by a different member, and after a hearing of almost four hours, the Tribunal again affirmed the decision not to grant the protection visa.
The applicant sought a review of that decision to this Court and on 16 April 2008, by consent, this Court made orders setting aside the decision of the Tribunal and remitted the matter again to the Tribunal for determination according to law.
That Tribunal (the third Tribunal), constituted by a different member from the previous two Tribunals, conducted a hearing on 17 June 2008, which hearing also took a similar time as the first hearing, but in this instance, it was conducted via a video link with the applicant located in Melbourne whilst the Tribunal member and the interpreter used to assist the applicant were located in Sydney.
Prior to this hearing commencing the applicant unsuccessfully sought an adjournment to allow him to obtain representation at the hearing.
The present review before the Court relates to the third Tribunal hearing.
Applicant’s claims
In short, the applicant claims to be at risk of serious harm should he be required to return to Lithuania because of his "whistle blower" activities there. He claims to have recorded conversations between two prominent men in finance and politics in that country relating to the trafficking of women for prostitution. He secretly recorded these men and gave the recordings to a journalist friend in the hope that he would publish the content of the tape recordings in a newspaper. However, his friend did not; although he allegedly gave the tape recordings to authorities.
On his return to Lithuania in March 2001 he claims he was subjected to two house searches by the police, and was interrogated and beaten. He claims the police demanded his copies of the tape recordings which he denied having. He claims to have been detained for a week and kept in a cell with criminals resulting in both psychological pressure and physical injury. He suffered a broken nose whilst in the cell. He recounts being summoned thereafter by the police for interrogation where demands were made of him to produce copies of the tape recordings he had made. On his way home from the police station he claims that he was approached by two men who mentioned the tape recordings before stabbing him. The stab wound required surgery and hospitalisation for a period of one month. A medical certificate was produced to the Tribunal in support of this claim.
After this incident he returned to Australia where he initially applied for a visa other than a protection visa. His explanation for not initially applying for a protection visa was that he was hopeful he might be able to return to Lithuania and had no intention at that stage of making Australia his home. As stated, after that application was refused he then applied for the protection visa.
Since his return to Australia he claims his father and brother in Lithuania had been summoned by the police. The two officials in Lithuania have, he claims, become more powerful and he is now in greater fear for his own safety and that of his family. In that regard the applicant recounted a severe assault in May 2008 on his brother and also the death in about May 2008 of the journalist to whom he had originally entrusted the tape recordings. That death was occasioned by a hit and run motor vehicle collision.
The Tribunal’s reasons for decision
The most significant and, in my view, determinant finding of the Tribunal was that in respect of the applicant's credibility. The Tribunal found that the applicant was not a witness of truth and that the applicant's claims were fabricated. In that regard the Tribunal concluded:
"The tribunal is satisfied that the applicant has fabricated the essential aspects of his claims in order to support the application for a protection visa."
The question of the applicant’s credibility is a finding of fact. I am satisfied from a reading of both the reasons for decision and the transcript of the hearing that the finding as to the applicant’s credibility, and its subsequent findings concerning the applicant’s substantive claims were within its exclusive jurisdiction and were open to it on the evidence presented. (See NADR v Minister for Immigration and Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey J.)
Grounds for review and contentions
The applicant set out five grounds for review.
first and third grounds – breach of section 425 and breach of procedural fairness
The first ground alleges a failure on the part of the Tribunal to discharge obligations under law; namely, the Tribunal was in breach of s.425 of the Migration Act 1958 (the Act) in that it failed to give a proper hearing to the applicant because it refused to grant an adjournment when requested and failed to give the applicant the opportunity to give evidence on an important integer of the claim, or in respect of what was the reason or part of the reason for the Tribunal’s decision; namely, the existence of the tape recordings.
The applicant also sought, as I understood his contention, to contextualise the alleged errors of the Tribunal, and indeed to buttress his contention that the Tribunal lacked an understanding of its task and its obligations in this regard, by highlighting a misstatement of the law by the Tribunal on a particular point. The Tribunal had said, when considering the request for the adjournment, that it did not need to conduct another hearing as there had already been two previous hearings. This was wrong. (See SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138). I was invited to infer from the Tribunal's incorrect expression of the law and the view that there was no need for a further hearing, that the Tribunal was less than alert to the need to provide a proper hearing to the applicant and in that context the refusal to allow an adjournment to obtain a representative amounts to a denial of a fair hearing to the applicant in all of the circumstances.
In respect of the contention that the applicant was not afforded an opportunity of a fair hearing, the applicant also contends that the Tribunal failed to give the applicant an opportunity to give evidence and present argument in relation to a substantive issue and integer of the claim; that is, the existence of the tape recordings. The applicant complains that the Tribunal did not allude to the fact that the existence of the recordings was an issue both during the hearing and in the subsequent request to comment on matters that may be the reason or part of the reason for denying the review. In that regard, the applicant contends the conclusion reached by the Tribunal that the existence of such recordings was a fabrication is a conclusion made without the benefit of the applicant being afforded a proper opportunity of providing evidence and a response to counter that conclusion.
In response the first respondent concedes that the Tribunal was in error in relation to the need for a hearing, but in making that concession highlights that such an error is not, in the circumstances of this case, one that affects the Tribunal's jurisdiction. The first respondent contends, with which contention I agree after having read the reasons for decision and the transcript of the hearing, that the Tribunal in any event conducted a hearing and, in that hearing, afforded the applicant a genuine opportunity to present evidence and argument concerning the issues arising in relation to the decision under review, which necessarily revolved around the issue of the tape recordings.
On the question of the adjournment, the first respondent highlights that there is no right to representation at a hearing (see s.427(6)(a) of the Act).
It is evident from the transcript that the Tribunal framed the issues arising on review and the integer of the claim made by the applicant as to the existence of the recordings. Their existence was always the basis of the applicant's claim for the need for protection and implicit, if not explicit, was the necessity to persuade the Tribunal of their existence. The issue of the tape recordings was also a critical issue for the second Tribunal hearing and, in my view, it ill behoves the applicant to suggest that he was not alert to the issue before this Tribunal. The second Tribunal did not accept he had “incriminating tapes”.
The Tribunal was open, in my view, to conclude after hearing all the evidence and submissions made by the applicant as to whether they did exist and the conclusion reached, particularly having regard to the fundamental determination by the Tribunal on the credit of the applicant, was open to it. The applicant cannot reasonably be said to be unaware of this reality. In any event, the applicant has not alluded to what, if any, evidence or, indeed, submission he may have been able to present to the Tribunal if he had been given the opportunity he says was denied to him.
The applicant's contention that the Tribunal may not have taken its obligation to provide a hearing seriously has no basis in the transcript or reasons for decision. It is obvious, in my view, from the transcript and the reasons for decision that the Tribunal entered upon a genuine desire to test the applicant's evidence, obtain relevant information and assess the applicant's claims. In doing so it afforded the applicant a fair hearing.
I am satisfied that the Tribunal's procedure, both in respect of refusing the adjournment request and in proceeding in the absence of representation for the applicant does not reveal any breach of s.425 of the Act.
I am satisfied that the Tribunal afforded the procedural fairness demanded pursuant to s.422B of the Act.
These grounds are not sustained.
Second ground – failure to have regard to relevant considerations
The next ground of review relates to an alleged failure of the Tribunal to take into account relevant considerations. In that regard the applicant contends that the assault on his brother and the death of the journalist, together with the injuries caused to the applicant after the assault on him following his claimed interview with the police amount to relevant considerations which the Tribunal failed to take into account.
In response the respondent does not concede that the matters identified by the applicant as relevant considerations were essential elements or integers of his claim for a protection visa. The first respondent contends that these matters are better categorised as corroborative evidence. With this general contention I agree. In any event, even should I be wrong in that assessment and the matters referred to are integers, the Tribunal's reasons for decision clearly demonstrate an awareness of the claims. The Tribunal made findings concerning these matters and was not persuaded the events had occurred as claimed. In my view, it was open for the Tribunal to make these findings, particularly having regard to the primary finding by the Tribunal on the credit of the applicant.
The applicant contends that the Tribunal should have considered how likely it would have been for the applicant to have suffered the knife wound in any other manner and for whatever other reason than that claimed by the applicant. Again, it was open to the Tribunal, in my view, to disregard the applicant’s version based upon the Tribunal’s assessment of his credit-worthiness and it was not incumbent on the Tribunal to explore or proffer other plausible reasons for the stabbing. (See Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Minister for Immigration & Anor; ex parte Cassim (2000) 175 ALR 209, Selvaddurai v Minister for Immigration and Ethnic Affairs (1994) ALD 347 and MZXRS v Minister for Immigration and Citizenship [2009] FCA 2)
The ground is not sustained.
Fourth ground – unreasonableness
The applicant contends that the Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted. In support of this ground the applicant relies upon:
·the rejection by the Tribunal of the applicant's reasonable explanation for not making some of his claims to the Minister when first applying for a visa;
·the Tribunal's rejection of the applicant's claim of discrimination as "vague and lacked details" when this claim was never put as a reason for the application for a protection visa;
·the Tribunal's consideration of the applicant's difficulty in remembering key dates and concluding, in the circumstances as presented by the applicant, that there was an inability to give "clear details about when that occurred, suggesting fabrication and raising doubts about the claims" was unreasonable having regard to the lapse of time, the inherently disorienting nature of the experience and the applicant's evidence that he was trying to erase those events from his memory;
·the Tribunal's conclusion that the applicant's difficulties in remembering events that happened in 2001 as raising "doubts about his claims of credibility generally" was likewise unreasonable;
·the Tribunal's non-acceptance of the proposition that a person that the applicant trusted might betray him under pressure and breach his confidence and give material to the people who later harmed the applicant; and finally
·the Tribunal's non-acceptance of the contention that fear may have prevented the applicant from seeking to bring out of Lithuania, as evidence to put to the Tribunal, some records made by the applicant about persons in power in his country.
Further, the applicant contends that it was unreasonable for the Tribunal, without making investigations of the likelihood of murderous attacks in Lithuania, to conclude that the murderous attack on the applicant, supported by medical evidence, occurred, but not for the reasons claimed by the applicant.
The sum total of the above incidents, the applicant contends does not amount to a justification for a conclusion that there was a total fabrication and such a conclusion in all of the circumstances is unreasonable in the Wednesbury sense (see Associated Provincial Picture House v Wednesbury Corporation [1948] 1KB 223)
In response the first respondent contends that the applicant, under this ground, seeks an impermissible merits review of the Tribunal's decision. I agree. In my view the findings of the Tribunal were open to it on the evidence presented and the reasons given for those findings exhibit probative logic. The Tribunal entered upon a process of fact finding and a determination of what weight the Tribunal should give to the evidence. The Tribunal had a basis for reaching the ultimate conclusion it did, particularly in relation to the credibility of the applicant which forms the cornerstone of the decision and upon which the applicant's case collapsed before the Tribunal.
I do not accept the applicant's contention that the matters referred to above individually or cumulatively establish the unreasonableness of the Tribunal's conduct. They do not, in my view, reflect the situation discussed in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 by Allsop J at [115].
The ground is not sustained.
Fifth ground – reasonable apprehension of bias
The final ground relied upon by the applicant was the contention that the Tribunal fell into jurisdictional error, or failed to act within jurisdiction, in that it behaved in such a way as to give rise to a reasonable apprehension of bias.
Once again, a perusal of the transcript and the reasons for decision does not support such a conclusion. The Tribunal addressed the applicant with civility and patience. The Tribunal also tested the applicant on those aspects of his claim with which it had difficulty. This was done a way that displayed method which was clearly designed to elicit relevant information and for the purpose of forming a basis for determining facts. The only inference that can be taken from the reading of the transcript and the Tribunal's reasons for decision is that the Tribunal was open to persuasion during the hearing and further invited comment by way of an invitation pursuant to s.424A of the Act. I have no disquiet about the Tribunal not having an open mind and I am confident that a fair minded lay observer would be also like minded.
This ground is not sustained.
Conclusion
For the above reasons, none of the grounds argued by the applicant are sustained and the application for review filed on 2 September 2008 should be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate: Mr Sam Parker
Date: 7 July 2009
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