MZYCL v Minister for Immigration - [2009] FMCA 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYCL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 358

MIGRATION – Alleged persecution for opposing custom of dowries, and for political opinion – applicant must establish case – no error of fact or law – application dismissed.

Federal Magistrates Court Rules 2001, r.44.11(c), 44.12
Migration Act 1958, ss.36(2), 65(1), 91R(1), 91R(2), 424A, 424A(3), 441A(4), 474
Migration Regulations 1994, pt.866 sch.2

W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Devries v Australian National Railways Commission (1993) 112 ALR 641
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration And Multicultural Affairs (1998) 86 FCR 547
Minister For Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
S157/2002 v Commonwealth (2003) 211 CLR 476
Attorney-General (NSW) v Quin (1990) 170 CLR 1
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Nagalingam v Minister For Immigration and Local Government And Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Yao-Jing Li v Minister For Immigration and Multicultural Affairs (1997) 74 FCR 275
Luu & Anor v Renevier (1989) 91 ALR 39
Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567

Applicant:

MZYCL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1321 of 2008

Judgment of:

Turner FM

Hearing date:

14 April 2009

Date of Last Submission:

14 April 2009

Delivered at:

Melbourne

Delivered on:

14 April 2009

REPRESENTATION

The Applicant:

Appearing on his own behalf

Counsel for the First Respondent:

Ms R.E. Hamnett

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1321 of 2008

MZYCL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore and revised from transcript)

Introduction

This is an application for judicial review of a decision of the Refugee Review Tribunal (the “RRT”) signed on 17 September 2008.
That decision affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa (CB 51).
The applicant claims to fear persecution on the basis of his political opinion, membership of the National Congress Party, and campaigning against the custom of dowries.
Part 866 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) sets out criteria for the grant of a protection (Class XA) visa.
Under s.65(1) of the Migration Act 1958 (the “Act”) a visa may be granted only if the decision‑maker is satisfied that the prescribed criteria for the visa have been satisfied. If the Minister is not satisfied, the visa must be refused. The Court refers to s.65(1)(b) of the Act.
Under s.36(2)(a) of the Act, a criterion for protection visa is that:
·the applicant for a visa is 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.

Background

The applicant arrived in Australia on 24 December 2007. He lodged an application for a protection (Class XA) visa on 6 February 2008.
The applicant claimed in his application that he left India “as I was under constant and continuous persecution from my political opponents.” (CB 7).
and:
“I am sure to be killed by my political opponent party members due to my political opinion and member of youth congress for anti‑dowry campaign.” (CB 8).
and:
“If I return to my country will definitely be persecuted from workers of Bahujan Smaj Party (BSP) and workers of Bhartya Janata Party (BJP).” (CB 9).
and:
“I cannot expect any protection from authorities of my country as the persecution which I will face is from members of BJP and BSP party. Members of BJP is ruling party of state and they all have full support of State Government; whereas members of BSP, having very strong political backing from ruling party of Uttar Pradesh, led by Chief Minister “Mayawati”. Hence I will not be able to get persecution (sic; “protection”) “from authorities of my country.” (CB 10).
The Delegate refused the application by decision dated 11 April 2008 (CB 51). The applicant lodged an application for review by the RRT on 9 May 2008. (CB 66).
The RRT invited the applicant to attend the hearing on 9 July 2008
(CB 73). The applicant attended the hearing gave evidence and presented arguments, with the assistance of an interpreter. (CB 101.2).
The RRT affirmed the decision of the delegate not to grant the applicant a protection (Class XA) visa by decision signed on 17 September 2008. (CB 97).
The applicant lodged the application for judicial review by this Court on 29 October 2008. The grounds and particulars of that application are as follows:
“1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
a. The tribunal misconstrued and misinterpreted the convention criterion in that the test is not whether the Indian government was unable or unwilling to protect the applicant, but rather whether the applicant owing to a well founded fear is unable or unwilling to avail himself the protection of the country. The tribunal clearly has not understood the criterion for refugee status and applied the wrong test and thereby fell into jurisdictional error.
b. The claims of the applicant were capable of demonstrating that the persecution feared by the applicant in future, if he returned to India, was persecution for reason of perceived political opinion. The Tribunal erred in treating the material as not coming within the ambit of section 91R(1) (b) of the Act, namely serious harm and s. 91R (2) of the Act.”
By orders of Registrar Allaway on 3 December 2008:
·the “show cause” hearing under rule 44.12 of the Federal Magistrates Court Rules2001 (the “Rules”) was dispensed with and the matter was listed for final hearing today. (r.44.11(c)).
·It was ordered that the applicant file an amended application, if any, by 16 January 2009. An amended application was not filed.
On 17 July 2008 the Tribunal sent a letter to the applicant pursuant to s.424A of the Act. (CB 89). The applicant did not respond to that letter. (CB 103.6).
The applicant has stated to the Court today that he did not understand a lot of the correspondence from the respondent. However, he stated that a friend of a friend of his helped him to reply to the s.424A letter.

The Court finds that the s.424A letter was sent to the latest reported address provided by the applicant (CB 87) (s.441A(4)(c)(i)) and that his attention was drawn to the content of that letter.
The content of the letter relates to the dates of elections held in India. The Court finds therefore that the contents of the letter are covered by the exception in s.424A(3)(a) of the Act in that the material in the letter is not specifically about the applicant. The Court finds therefore that the Tribunal was not obliged under the Act to give that information to the applicant. A breach of s.424A has not been established.
The Tribunal stated that making findings of fact on claims made in an application may involve an assessment of the applicant's credibility. (CB 104.2). The RRT found that “The Tribunal finds the applicant to be a witness who lacks credibility” (CB 104.6) and listed issues where the applicant’s evidence was inconsistent.
In the decision in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and 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 in the case are against or even strongly against the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 112 ALR 64 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’.”
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].”
As stated by the Federal Court of Australia in Lee vMinister 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 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.”
As stated at the outset of this decision, an applicant must make their case to the Court or the Tribunal. The Court agrees with the following statement by the Tribunal in another matter.
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MLGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).”
“Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIMA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.”
The Court notes here that the applicant told the Court today that he supplied the wrong date for the election in India. As set out above an applicant must provide the relevant facts.
“in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her, nor is the Tribunal required to accept uncritically any or all allegations made by the applicant” Prasad Ibid and Guo Ibid.
As stated in Prasad v Minister for Immigration and Ethnic Affairs ibid: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.
Clearly in this case the applicant did not satisfy the Tribunal that all statutory elements were made out.
The applicant alleged in Particular (a.) of his application that:
“The Tribunal misconstrued and misinterpreted the Convention criterion in that the test is not whether the Indian government was unable or unwilling to protect the applicant but rather whether the applicant, owing to a well‑founded fear, is unable or unwilling to avail himself of the protection of the country”
The Court finds that the Tribunal applied the correct test as set out at (CB pages 98 to 100 paras 9 to 18). The test alleged not to have been applied is set out in para 17.
The Court rejects that particular (a.) of the application..
Particular (b.) of the claim is that the Tribunal erred in not treating the material as coming within “serious harm” within ss.91R(1)(b) and 91R(2) of the Act.
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 Tribunal found, for the reasons it set out, that the applicant's “story is not genuine for the purpose of his protection visa application”. (CB 106.3).
The Tribunal found that it “is satisfied that the applicant was not seriously harmed by his political opponents and that he was not targeted or harmed by them, nor does he face a real chance of suffering harm in the reasonably foreseeable future”. (CB 106.4).
At (CB 106.5) the Tribunal stated:
“Accordingly the Tribunal finds that the applicant has not suffered persecution in the past, or that he has a well‑founded fear of persecution within the meaning of the Convention if he returns to India now or in the reasonably foreseeable future”.
Those findings of fact were open to the Tribunal on the material before it and are not open to review.
There was no error of law in not treating the facts as amounting to “serious harm” within ss.91R(1)(b) or 91R(2) of the Act. The RRT did not accept the applicant’s evidence as to the alleged harm (CB 106.3). The claim in particular (b.) is rejected.
The Tribunal then found that it is not satisfied that the applicant “is a person to whom Australia has protection obligations under the Refugees Convention” (CB 106.4).
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 is dismissed.
The Minister has succeeded in opposing this application.
The Minister is therefore entitled to claim his costs of conducting the action. Schedule 1 to the Rules of this Court provide that if a proceeding is concluded at a final hearing the amount of costs claimed can be $5,000.00. The Court orders that the applicant pay the first respondent’s costs of $5,000.00.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 6 May 2009