MZYCA v Minister for Immigration
[2009] FMCA 357
•12 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYCA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 357 |
| MIGRATION – Alleged persecution for saving cows from slaughter in India – failure to grant adjournment – no denial of procedural fairness – Tribunal entitled to accept or reject evidence – finding as to credibility is a finding of fact – no review of findings of fact – no error of law. |
| Federal Magistrates Court Rules 2001, rr.44.11(c), 44.12 Migration Act 1958 (Cth), ss.36, 65, 91R, 414, 422B, 424A, 424AA, 424B, 474 |
| SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 |
| First Applicant: | MZYCA |
| Second Applicant: | MZYCB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1204 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 16 April 2009 |
| Date of Last Submission: | 16 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2009 |
REPRESENTATION
| The First Applicant: | The First Applicant appeared for the Applicants |
| Counsel for the Respondents: | Ms Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application and the amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1204 of 2008
| MZYCA |
First Applicant
| MZYCB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review (CB 1) of a decision of the Refugee Review Tribunal (the “RRT”) handed down on 9 September 2008 (CB 64.6) that affirmed a decision of the delegate of the Minister on 17 April 2008 not to grant the applicants Protection (Class XA) visas.
Applicant MZYCA arrived in Australia on 5 March 2008. She was accompanied by her spouse, MZYCB (CB 36). The second applicant is a non-citizen in Australia and does not advance any claims of his own. He is included in the protection application of the first applicant as a family member (s.36(2)(b)) of the Migration Act 1958 (the “Act”)). The first applicant is referred to herein as (“the applicant”). The applicants arrived in Australia on tourist sub class TR-676 visa (CB 43).
The applicant filed an application for judicial review by the Court on 6 October 2008. The grounds of the application are:
“1.That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
Particulars:
(a) there was certain adverse information used by the Tribunal to affirm the decision under review.
(b) The Tribunal did not disclose the information in accordance with s.424A(1).
2.That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
3.That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.”
The applicant filed an amended application on 24 February 2009.
The grounds of the amended application are:
“1.The Tribunal failed to accord “Procedural Fairness” to the applicant because of:
1.1 its failure to carry out is role in a Inquisitorial Manner when it should have considered all the evidence before it but instead it made a contrary finding that:-
“The Tribunal accepts that…Geetaben Rambiyah was murdered as a result of her work in saving cows from the slaughter house in India. The Tribunal also accepts that the applicant, as a Hindu, also genuinely cares about the welfare of cows and that as a child assisted her grandfather to care for cows. The Tribunal does not accept any of the applicant’s other claims and does not accept that she is a credible witness.”(RRT decision paragraph 57)
“The Tribunal would expect that the applicant would be able to recall accurately when she commenced employment at the Trust, when her employment at the Trust ceased and whether she was paid for her work. The inconsistent evidence on this issue leads the Tribunal to conclude that the applicant has not been truthful in relation to her work for the Trust.” (RRT decision paragraph 58).
1.2 the weight it gave to the claims of the Applicant notwithstanding an honest explanation of these claims when it said:
“Given the vague nature of the applicant’s statement that she did not provide truthful evidence “on my issue”, the Tribunal has proceed to consider the totality of her claims as before the Department and the Tribunal.” (RRT decision paragraph 55)
“The Tribunal does not accept that it is credible that the applicant would be unable to recall when Geetaben Rambiyah was murdered if she had worked for the Trust for 5 to 6 years as claimed…The applicant told the Tribunal…that it was many years ago and that is why she does not know. The Tribunal does not accept the applicant’s explanation for her inability to recall even the approximate date of Geetaben Rambiyah’s death.” (RRT decision paragraph 59)
The Applicant submitted that the Tribunal erred in not assessing the Applicant’s claim in a manner that was required as mandatory under sec.414 of the Migration Act, thus giving rise to a breach of a statutory provision of the Act which amounts to jurisdictional error made by the Tribunal.
2. The Tribunal acted in a ‘manifestly unreasonable’ manner towards the Applicant when dealing with the Applicant’s claim because of it’s failure to consider the claim in accordance with the Criteria in Article 1(A)(2) of the 1951 UN Convention relating to Status of Refugee, due to the following conclusions:-
2.1 “Although the Tribunal has been prepared to accept that the applicant as a Hindu genuinely cares for the welfare of cows and may have assisted her grandfather in this regard, the Tribunal does not accept that there is a even a remote chance that this will result in the applicant suffering harm for a Convention reason now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant would be harmed in India for any Convention reason.” (RRT decision paragraph 63)
2.2 “Nor does the Tribunal accept that the applicant would not be assisted by the BJP, a primarily Hindu party which has been in power in Gujarat for some 10 years. The Tribunal does not accept that it is credible that the BJP would not assist someone who has been viciously attached and received threatening phone calls in relation to her work caring for their sacred animal.” (RRT decision paragraph 61).
2.3 “The Tribunal does not accept that a person who has such limited involvement in the circumstances where such a small number of people have been harmed and the majority of the attacks have been on Muslim rather than Hindus.” (RRT decision paragraph 62).
The Applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and ignoring the aspect of persecution or serious harm in terms of Sec.91R of the Act in order to be satisfied whether the Applicant has a well founded fear of serious harm or a “real chance”. Hence the Tribunal failure to observe this obligation, amounted to a breach of a statutory obligation thus amounting to jurisdictional error committed by the Tribunal.
3.The Tribunal fell into jurisdictional error in failing to request more information regarding the applicant’s activities in the charitable trust from the charitable trust itself.
4. Particulars of FRAUD or BAD FAITH if alleged (Order 54B, rule 2) NONE.”
The matter came on for directions before Registrar Allaway on 3 December 2008, when the first respondent was ordered to show cause at a final hearing why an order for the relief claimed should not be made in respect of the decision of the Tribunal signed on 21 August 2008. Pursuant to r.44.11(c) the Court dispensed with a hearing under rule.44.12 and proceeded with a final hearing.
The Tribunal held a hearing on 9 July 2008 at which the applicant gave evidence and made submissions with the assistance of an interpreter (CB 72.10).
On 14 July 2008 the RRT sent a s.424A letter to the applicant (CB 57) which included a statement “that you have given highly inconsistent evidence on your protection visa application form and oral evidence to the Tribunal” (CB 57.9). The letter stated that a response should be received by the Tribunal by 6 August 2008 (CB 59.2). The applicant responded with a letter apologising for not providing truthful evidence and seeking an extension of time “to provide truthful evidence with written documents from the related sources from my country” (CB 62.6).
The application for extension of time was received by the RRT on
6 August 2008(CB 63.5). The Tribunal rejected the application for an extension (CB 63). The RRT was not obliged to grant an extension of time (s.424B(4)), and did not deny the applicant procedural fairness by failing to do so. In the letter refusing an extension the RRT stated that “further evidence can be provided up until the handing down the decision” (CB 63.7). The decision was handed down on 9 September 2008. The applicant therefore had from 14 July 2008 until 9 September 2008 (CB 82) to respond to the s.424A letter and failed to do so. The Tribunal explained its reason for not granting an extension (CB 79.3). Those reasons show a proper exercise of discretion.
The applicants appeared in Court on 15 April 2009 and were assisted by a Gugarati interpreter. The applicant stated that she needed an extension of time to obtain documents. As those documents were not put before the Tribunal the Court refused to grant an extension of time.
An applicant is confined before this Court to material put before the Tribunal SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 at [27]. The applicant then sought an adjournment as she had not received the Court Book until 10 March 2008. The Court declined to grant an adjournment as the applicants had had adequate time.
The hearing then proceeded. The applicants made no submissions in support of their application, but relied on their Contentions of Fact and Law. The first respondent relied on his Contentions of Fact and Law.
Findings as to the grounds in the application
Ground 1. This ground alleges a breach of s.424A(1) of the Act.
A s.424A letter was sent to the applicants (CB 57-61).
A breach of s.424A has not been established. An applicant must make out their own case Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Ground one is rejected.
Ground 2. This ground alleges a lack of procedural fairness. A denial has not been established. The applicant’s attended the hearing and had the assistance of an interpreter. The Court accepts the submissions for the first respondent that the Tribunal’s decision shows that at the hearing it put all the issues to the applicant that subsequently formed the basis for its decision, including:
·The inconsistencies in her evidence about being a paid employee of a charitable trust, compared with her evidence that she was a volunteer (CB 73, para [29] and CB 74 paras [32] and [34]).
·That it was difficult to believe that she had worked for the charitable trust when she was unable to provide even an approximate date of the murder of the woman, (after whom the trust was named). (CB 74 para [32] line 5).
·That the applicant’s account of the alleged attacks on her were very vague and there were differences between the details in her statement in support of her application for a protection visa and her evidence to the RRT (CB 74 para [31]).
·That her account of why she did not report the attacks to the police was difficult to believe (CB 74 para [35]).
·That at the hearing her initial evidence was that was that she had gone to premises to care for cows and clean the premises (CB 74 para [34] line 5) and later she claimed that Muslims thought she would start working for the trust again because she had been active in campaigns to prevent the slaughter to cows (CB 74 para [34]).
·Details of the RRT’s concerns were also put to the applicant in the s.424A letter (CB 57-61). The RRT considered her response (CB 79 para [55]).
The letter sent to the applicant rejecting her request for an extension of time gave the applicant “up until the handing down of the decision” to respond (CB 63.7). The decision was handed down on 9 September 2008 (CB 64.6 and CB 82). The applicant had adequate time to respond.
It may be asserted that the RRT did not comply with all the requirements of s.424AA, but even if that is so, that does not constitute jurisdictional error, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (15 April 2009) per Tracey and Foster JJ at [74] and [79]. This meant that the RRT had to comply with s.424A, which it did. Ibid [89].
A denial of procedural fairness has not been established. Ground 2 is rejected.
Ground 3. This ground alleges denial of natural justice because “the Tribunal failed to provide further opportunity before the Tribunal.” That contention is incorrect; the applicant was invited to put further evidence before the Tribunal up until the handing down of the decision (CB 63.7). Section 422B(1) provides that Division 4 is an exhaustive statement of the natural justice hearing rule. No breach of Division 4 has been shown. A s.424A letter was sent, the applicants were invited to appear before the Tribunal (CB 53) and did appear.
Ground 3 is rejected.
Findings as to the grounds in the amended application
Ground 1.1. This ground alleges a denial of procedural fairness in the RRT not accepting the applicant’s claims and not accepting her as credible witness.
As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The RRT set out its analysis of the evidence of the applicant (CB 79-81) and specified numerous instances of evidence that the Tribunal did not accept, and its reasons for so finding. The RRT did not accept that the applicant was a credible witness (CB 79 para [57]). Those findings are findings of fact that are not open to review before this Court.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
The Court agrees with the following submission in another matter:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMIA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
The Court refers to a submission in another matter that correctly states the law, that:
“The issue the applicant seeks to agitate is no more than an impermissble attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his honour had said:”
“16. I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysising the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadscasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immgration and Multicultural Affairs 160 ALR] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
Ground 1.1 is rejected.
Ground 1.2. This ground alleges a denial of procedural fairness because of the weight the RRT gave to the claims of the applicant nothwithstanding an honest explanation, when it referred to the vague nature of the applicants’ statement that she did not provide truthful evidence. This appear to be a complaint that the RRT placed too much weight on the findings of fact that the evidence of the applicant was not credible.
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
The Court does not find that the Tribunal has failed to use, or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court agrees with the following submission in another matter:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
The findings of the RRT were property open to it on the material before it. The weight it gave to the evidence is a matter for it.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not find the Tribunal’s decision to be manifestly unreasonable.
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs supra:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29] as follows:
“the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.”
The applicant claims that the RRT placed too much weight on her being unable to recall when Geetaben Rambiyah was murdered. She complains that the Tribunal did not accept her explanation. The Court refers again to the decision in Lee supra. The above claims are rejected.
The applicant then alleges that her claims were not assessed in the manner required by s.414 of the Act. This claim is rejected (post). No error has been shown.
Ground 1.2 is rejected.
Ground 2. This ground alleges that the RRT acted unreaonably in failing to consider the claims in accordance with the Criteria in Article 1(A)(2) of the 1951 UN Convention. The RRT set out its consideration of the Critieria at (CB 69-71) and then proceed to deal with the claims in accordance with the Criteria, before concluding in para 64 (CB 81) that “the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention”. Therefore the firstnamed applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Section s.36(2) provides:“Protection visas
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.”
The RRT continued at (CB 81 para [65]):
“The other applicant applied on the basis of his membership of the first named applicant’s family. The fate of his application depends on the otucome of the first named applicant’s application. As the first name applicant does no satisfy the criterion set out in s.36(2)(a), it follows that the other applicant cannot satisfy the relevant criterion set out in s.36(2)(b) and cannot be granted a visa.”
Cleary the RRT cosnidered the claims in accordance with the relevant criteria.
Ground 2 is rejected.
Ground 2.1. This ground complains that the RRT accepted that the applicant cares for the welfare of cows… but then found that it “does not accept that there is even a remote chance that this will result in the applicant suffering harm for a Convention reason or in the reasonably foreesable future. The Tribunal is not satisfied that the applicant would be harmed in India for any Convention reason” (CB 81 par [63]). Those findings of fact were open to the RRT on the material before it (see para [62]) and are not subject to review see NAHI supra.
This ground is rejected.Ground 2.2. This ground complains about findings of fact by the RRT and its rejection of evidence. It is a matter for the Tribunal which evidence it accepts or rejects see Lee supra. Ground 2.2 is rejected.
Ground 2.3 complains again that the Tribunal rejected certain evidence. That is a matter for the Tribunal see Lee supra. Again this ground seeks a review of the merits which is unavailable. NAHI supra.
Ground 2.3 is rejected.
The applicant then asserts that the RRT “ignored the aspect of persecution or serious harm in the terms of s91R”. This assertion is factually incorrect. The RRT considered persecution, serious harm and s.91R in paras 14-19 of its decision (CB 70). This claim is rejected.
Para 12 of the applicant’s contentions alleges that “the Tribunal failed to assess the applicant’s claims in a manner that was required as mandatory under s.414 of the Act”, and thereby committed jurisdictional error.
Section 414 provides:
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
The Court accepts the submissions for the first respondent that:
“In order to review the decisions under s.414, the Tribunal must deal with the applicant’s case riased by the material or evidence before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. The review of a decision under s.414 requires the Tribunal to consider the applicant’s claims: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244. It is then open for the Tribunal to accept or reject those claims.”
(see Lee supra).The Court finds that the RRT performed its duty under s.414 to consider the claims made by the applciant and the evidence before it. The RRT considered the evidence of the applicant given to the Department and the oral evidence given at the hearing. The RRT considered and accepted her claim that, as a Hindu, the applicant geninuely cares about the welfare of cows and may have assisted her grandfather in this regard. However, the Tribunal rejected the rest of the applicant’s claims. Those findings were open to it on the evidence before it (CB 79-81).
This ground is an attempt to review factual findings by the Tribunal which is not open to a Court conducting judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24], Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36. The Tribunal considered the evidence before it and made findings about that evidence. The applicant’s real complaint is that the findings made by the Tribunal are not in the applicant’s favour.
The Court rejects this ground.The applicant claims that the RRT fell into jurisdiction error by failing to request more information from the trust itself, regarding the applicant’s activities in the charitable trust. The RRT was under no duty to enquire SZEEU v Minister For Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 150 FCR 214 at [61].
The Court accepts the following submission for the first respondent.“There is no positive obligation to obtain further information on the part of the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR at [43]. While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims: SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33]”.
An applicant must establish their case. This claim is rejected.
In para 14 of the applicant’s Contentions of Fact and Law she alleges that the RRT “in failing to make specific findings has failed to reach the required state of satisfiaction or non-satisfaction as per s.65(1) of the Migration Act”. The RRT made specific findings about the evidence before it. It did not accept most of that evidence (CB 79-82). Therefore the applicant failed to meet the criteria for the grant of a visa. This claim is rejected.
The Applicant contends that the RRT, in failing to make specific findings, failed to reach a required state of satisfaction or non-satisifaction as required by s.65(1) of the Act.
Section 65(1) provides:
“Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.”
The RRT made findings that caused it to determine that the applicant had not satisified the criterion for the grant of a visa. After finding that the applicant did not satisfy the criteria for a visa, the RRT was not required to make findings on all other matters. The Court refers to the following passage in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:
“58 It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”
This claim is rejected.
No reviewable error of fact or error of law has been established.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application and amended application are dismissed.
The fate of the second applicant’s application depends on the outcome of the first named applicant’s application (CB 81.10). These applications having been dismissed, the application by the second named respondent also fails.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 12 May 2009
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