MZYDR v Minister for Immigration - [2009] FMCA 1070

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYDR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1070

MIGRATION – “Information” in s.424A not encompass Tribunal’s subjective appraisals, thought process or determinations – no denial of procedural fairness – credibility is question for Tribunal – finding of fact par excellence.

Migration Act 1958 (Cth), ss.91R(3), 422B, 424, 426A, 474

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Re Minster for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Liu v Minister for Immigration and Multicultural Affairs [2001] FCAFC 136Z

Applicant:

MZYDR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

REFUGGE REVIEW TRIBUNAL

File Number:

MLG 395 of 2009

Judgment of:

Turner FM

Hearing date:

6 October 2009

Date of Last Submission:

6 October 2009

Delivered at:

Melbourne

Delivered on:

6 October 2009

REPRESENTATION

The Applicant appeared In Person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

That the application for judicial review filed 14 April 2009 is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 395 of 2009

MZYDR

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The applicant in this matter has been refused a Protection (Class XA) Visa, and he seeks to have that decision reviewed by the court.
The main issues relevant to the review are:
·whether the Tribunal breached s.424A of the Migration Act 1958 (the “Act”);
·whether the applicant was denied procedural fairness; and
·“The RRT failed to assess my risk to return to China. RRT did not take my evidence into account.”
The above issues are extracted from the grounds of the application that are as follows:
·RRT did not give me a chance to explain the doubts by writing.
·Procedural Fairness has been denied.
·The RRT failed to assess my risk to return (sic “of returning”) to China. RRT did not take my evidence into account.
As to the alleged breach of s.424A of the Migration Act 1958;
Ground one alleges that the Tribunal breached that section by not putting its assessment of the applicant’s evidence to the applicant for comment. Section 424A(1)(a) requires the Tribunal to give the applicant clear particulars of any “information” that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
As stated in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214:
“Information” does not encompass a Tribunal’s subjective appraisals, thought processes, or determinations.
The Court refers to the following passages in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of paragraph (a) of section 424A(1). Again, if the Tribunal affirmed the decision, because even the best view of the applicant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute information. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 that the word “information” does not encompass the Tribunal’s subjective appraisals, thought processes, or determinations.
The Tribunal’s assessment of the applicant’s evidence is therefore not “information” within s.424A(1). A breach of s.424A has not been established. Ground one is dismissed.
Ground two alleges that procedural fairness was denied. Section 422B of the Act states that Division 4 is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. A breach of s.424A has not been established. Section 425 was complied with, as a written invitation to the hearing before the Tribunal, was sent to the applicant’s migration agent on 14 November 2008. A copy of that is contained at Court Book, page 64. Section 426A was complied with. That is evidenced at the Court Book, page 64, point 9. A response to the invitation was received and it was dated 14 November 2008. That is at Court Book, page 67. It indicated that a Mandarin interpreter was required for the hearing. The applicant attended the hearing on

10 December 2008 and had the assistance of a Mandarin interpreter. That is recorded at Court Book, page 95, point 5. A denial of procedural fairness has not been established.
Ground two is dismissed.
Ground three claims that the “Tribunal failed to assess my risk to return to China and did not take my evidence into account.”
An examination of the decision of the Tribunal shows this assertion to be incorrect. The Tribunal was not satisfied that the applicant belonged to an unauthorised church in the People’s Republic of China. That is recorded at Court Book, page 113, point 4 of the page. The Tribunal noted the inconsistent evidence about the applicant being the subject of a “Wanted” notice – that is at Court Book, 113, point 9 – and that the applicant told the Tribunal that he did not know if such a notice had ever been issued. That is at Court Book, 113, point 10. The Tribunal found that the authorities did not arrest or pursue the applicant as claimed – that is at Court Book, 114, point 9, and that the authorities had no relevant interest in the applicant. That is Court Book, 114, point 10. The Tribunal did not accept that the applicant was the subject of negative interest by the authorities. That is recorded at court book, page 115, point 3. 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 Tribunal did not accept that the applicant belonged to an unauthorised church. That is recorded at Court Book, 115, point 5. The Tribunal disbelieved the applicant’s claim that his wife was forced to have an abortion. That is recorded at Court Book, 115, point 7. The Court refers again to the decision in Lee (supra). The Tribunal did not accept that the applicant was a witness of truth. That is recorded at Court Book, 115, point 4. As stated by McHugh J in Re Minster for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]:
A finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
However, the Tribunal here gave its reasons for rejecting the evidence. The Tribunal found significant parts of the applicant’s story to be completely unconvincing. That is at Court Book, 115, point 9. The Tribunal found that there was no evidence to suggest that the applicant’s family had a negative profile resulting in him having suffered serious harm, or that he would suffer serious harm, now or in the reasonably foreseeable future, if he were to return to the PRC. That is at Court Book, 116, point 5. The Tribunal was not satisfied that the applicant faces convention-related persecution in the PRC. Court Book, 116, point 6.
The Tribunal found that the applicant’s association with Christianity in Australia, is conduct in Australia entered into for no other purpose than to enhance his application for refugee status. That is at Court Book, 117, point 1. It therefore found that it must disregard that evidence by virtue of s.91R(3) of the Act. The Tribunal then found that the applicant would not involve himself with Christian churches or unregistered Christian churches in the PRC, due to the fact that he is not genuinely interested in living as a Christian. That finding is at Court Book, 117, point 2.
The Tribunal was not satisfied that the applicant faces a real chance of Convention-related fear in the PRC. It found that his claimed, “fear of Convention-related persecution”, is not well founded. That finding is at Court Book, 117, point 4. The Tribunal, therefore, undertook a thorough assessment of any Convention-related risk if the applicant returns to the PRC. The Tribunal took the applicant’s evidence into account in reaching its decision. Ground three is dismissed.
The Court has considered also the fact that the Tribunal was reconstituted during the proceedings and, on the basis of the decision in; Liu v Minister for Immigration and Multicultural Affairs [2001] FCAFC 136Z at [40], finds there was no jurisdictional error. The Full Federal Court held in that decision, at paragraph 40:
The phrase, “continued to finish” in section 422 subsection (2) simply requires the reconstituted Tribunal to undertake what remains to be done in the review without interrupting the process while picking up and carrying on the steps that have already been taken.
That is what the Tribunal did in this case.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstance, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. The application for judicial review is therefore dismissed.
As the Minister has been successful in this matter, the Minister’s representative seeks an order that the applicant pay the Minister’s cost for $5,865.00. That is the amount specified in the rules of the Court for costs where the matter is concluded at a final hearing, which is what has occurred today.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM.

Associate: Erin Firns

Date: 29 October 2009