MZYFH v Minister for Immigration
[2009] FMCA 1067
•13 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYFH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1067 |
| MIGRATION – Section 424A(1) – not apply to country information, compliance with s.424AA removes need to comply with s.424A – credibility – finding of fact par excellence. |
| Migration Act 1958 (Cth), ss.357A(1), 422B, 424, 425 |
| SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 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 (FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 Re Minster for Immigration and Multicultural Affairs; ex parte Durairajasingham 2000 HCAI; 2000/68 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) 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 SZKMG v Minister for Immigration and Citizenship [2009] FCAFC 99 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 |
| Applicant: | MZYFH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 751 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 2 October 2009 |
| Date of Last Submission: | 2 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2009 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of an Hindi interpreter |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application filed 18 June 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 751 of 2009
| MZYFH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant has been denied a protection (Class XA) visa and seeks judicial review of that decision.
The main issues relevant to the review are:-
(1)
Alleged breaches of the Migration Act 1958
(the “Act”)
(2)Whether the applicant was denied natural justice or procedural fairness?
The Application
The grounds in the application are as follows:-
(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.
Alleged breaches of the Migration Act 1958
Ground one alleges a breach of s.424A of the Act. The Particulars claim that adverse information was used by the Tribunal to affirm the decision under review and that the information was not disclosed to the applicant under s.424A(1).
If the Tribunal complies with s.424AA of the Act it is not required to meet the requirements of s.424A.
As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] and [88]:
“If the information under consideration by the Tribunal is the type of information covered by subs (3) of s424A of if the Tribunal has engaged the provisions of s424AA and complied with the requirements of that section, it need not meet the requirements of s424A(1). This is because s424A(2A) relieves the Tribunal of the obligation to do so if s424AA has been complied with and s424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.”
The first respondent concedes that evidence the Tribunal received from two witnesses was adverse to the applicant and was therefore relevant information within s.424A. Those witnesses were Father Thomas and Father Peter Kundavaram.
The first respondent contends that the Tribunal was not required to comply with s.424A because it complied with s.424AA.
Section 424(2A) provides:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
Section 424AA provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to 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; and
(b)if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The applicant appeared at the hearing before the Tribunal to give evidence and make submissions with the assistance of an interpreter. (Court Book 38.4)
The decision records that the evidence of the Fathers was put to the applicant, and the relevance of it was explained to him. (Supplementary Court Book 42.6 and 42.9)
The decision records that the applicant did not seek time to respond. (Supplementary Court Book 42.10 and 43.1)
This is supported by the hearing record (Supplementary Court Book 24) which records that the applicant did not seek time to respond. (Supplementary Court Book 24.8)
The applicant appeared at the hearing before the Court with the aid of an interpreter. The Court directed the interpreter to read paragraph 62 and the start of paragraph 63 of the decision record to the applicant. After this was done the Court asked the applicant whether he agreed that after the evidence of the Fathers was put to him, the applicant elected to respond immediately (Supplementary Court Book 43.1). The applicant agreed that he had elected to respond immediately.
The Court finds that the requirements of s.424AA were complied with by the Tribunal and therefore it did not have to comply with s.424A.
The Tribunal considered Country Information as to the ability to relocate within India – such information is excluded from s.424A(1). [s.424A(3)(a)]
A breach of s.424AA or of 424A has not been established. That ground is dismissed.
The next ground alleges a lack of procedural fairness and a denial of natural justice “Because it failed to provide further opportunity before the Tribunal.”
The applicant was given the opportunity of requesting an adjournment (Supplementary Court Book 42.10), and did not request time to comment or respond (Supplementary Court Book 24.8) and “elected to respond immediately” (Supplementary Court Book 43.1). The complaint of “failing to provide further opportunity” is dismissed.
Section 422B provides that Division 4 is an exhaustive statement of the natural justice hearing rule.
Section 424AA was complied with. Section 424A was not breached. Section 425 was complied with, as on 2 March 2009 the Tribunal invited the applicant to attend the hearing on 30 March 2009. (Supplementary Court Book 21.5)
A breach of Division 4 of Part 7 of the Act has not been established.
The effect of s.357A(1) is to exclude the Tribunal from common law obligations of procedural fairness SZKMG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49-50] and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [48].
The provisions of s.357A(1) and 422B(1) are the same. These decisions therefore are applicable to s.422B.
A lack of procedural fairness or denial of natural justice has not been established.
Ground two is dismissed.
The Tribunal received evidence by telephone from Father Thomas and Father Peter Kundavaram in India. The applicants claims were explained to Father Thomas who indicated:
“…that that was all lies; that nobody had been attacked by Hindus and nobody was being looked after by the church.” (Supplementary Court Book 42.2).
Father Peter Kundavaram described the applicant’s claims as “absolutely wrong”, and “that it was a case of fraud and the applicant is attempting to bluff the Tribunal” (Supplementary Court Book 42.5).
In the hearing before the Court the applicant alleged that Father Peter Kundavaram had “lied to the Tribunal.”
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 did not find the applicant to be a credible witness. (Supplementary Court Book 51.5).
In W148/00A vMinister 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 refers to the following decisions:
“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 Justice McHugh in Re Minster for Immigration and Multicultural Affairs; ex parte Durairajasingham 2000 HCAI; 2000/68 ALR 407:
“…a finding as to whether the prosecutor should be believed in his claim – a finding on credibility…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 sub-set of reasons why it accepted or rejected individual pieces of evidence.”
The Tribunal found the applicant’s claim to have been a victim of anti-Christian violence to be “unconvincing”, for the reasons it set out (Supplementary Court Book 52.1).
The Tribunal was entitled to reject the evidence in support of that claim (Lee Supra).
The Tribunal did not find the following claims to be credible for the reasons it set out (Supplementary Court Book 52.7). The Tribunal did not accept the applicant’s claim to have been attacked and warned to change his religion; nor to have been attacked and beaten unconscious and have his shop ransacked; nor that Hindus are not happy with the applicant’s progress in life; nor that he had been getting threatening calls; nor that he was threatened to change his religion or his family would be killed; nor that the applicant’s family sought sanctuary from the Church and are currently living in Church property; nor that the applicant has been persecuted for reason of his religion, or for any other Convention reason (Supplementary Court Book 52.7 – 10).
The Tribunal found that there is not a reasonable chance that the applicant will experience serious harm amounting to persecution in the reasonably foreseeable future if he returns to the Punjab in India (Supplementary Court Book 53.1).
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.”
And at [11]:
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
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 the following passage in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
The Court refers to the decision of Justice Collier in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [16] that:
“The Full Court in Randhawa 52FCR 437 held that the Convention definition of “refugee” does not support a claim to refugee status in circumstances where the applicant…could avail themselves of protection elsewhere in that country…if it is reasonable in the circumstances to expect a person with a well-founded fear of persecution in that part of the country from which they have fled to relocate to another part of the country of nationality.”
The Tribunal was entitled to make the finding of fact on the material before it that safe relocation is reasonably open to the applicant (Supplementary Court Book 56.7).
That finding of fact is not open to review.
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.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 13 November 2009
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