MZYFO v Minister for Immigration - [2009] FMCA 1148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYFO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1148

MIGRATION – Section 424A – country information – adverse finding of credibility – whether independent unimpeachable reasons for the decision – discretion to deny relief.

Migration Act 1958 (Cth), ss.353(2), 357A(1), 420, 422B, 424, 474

W148/00A vMinister 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) 168 ALR 407
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24
Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223
Attorney General for the State of NSW v Quin (1990) 170 CLR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425
Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
S157/2002 v Commonwealth (2003) 211 CLR 476
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
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
SZKMG v Minister for Immigration and Citizenship [2009] FCAFC 99
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567
Zuway v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 931
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Re Refugee Tribunal Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362
Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108
Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369
Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13
Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 Abebe v Commonwealth (1999) 197 CLR 510
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402
Minister for Immigration and Ethnic Affairs v Guo[1997] HCA 22; (1997) 191 CLR
Paul v Minister for Immigration & Multicultural Affairs[2001] FCA 1196; (2001) 113 FCR
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’)
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 10
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167

Applicant:

MZYFO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 931 of 2009

Judgment of:

Turner FM

Hearing date:

8 October 2009

Date of Last Submission:

8 October 2009

Delivered at:

Melbourne

Delivered on:

10 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Taaffe

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Felman

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

That the application filed 22 July 2009 and amended application filed

1 October 2009 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 931 of 2009

MZYFO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant was refused a Protection (Class XA) visa and seeks judicial review of that decision.
The main issue relevant to the review is:
·Whether the Tribunal made a reviewable finding of fact that resulted from a misinterpretation of country information?
That issue is extracted from the grounds in the application and amended application, which are as follows.

The application

The Grounds of the Application are:
1.The decision of the Tribunal:
(a)is affected by an error of law.
(b)is an unreasonable decision that no reasonable decision maker could have made it.
(c)is based on a finding for which there was no evidence or other material.
(d)takes into account irrelevant considerations.
(e)fails to take into account relevant considerations.
(f)was an improper exercise of the power conferred by the Migration Act 1958.
(g)was not made in good faith or was not a bona fide attempt to exercise the powers conferred on the Tribunal.
(h)was otherwise contrary to law.

Particulars/Details
Further details of the error will be provided in accordance with the directions of the Court.

The amended application

B. GROUNDS OF CLAIM
(4)The Tribunal did not have regard to relevant material and took into account irrelevant material leading to erroneous findings of fact and errors of reasoning in coming to its decision which constitutes a jurisdictional error.
(a)The Tribunal rejected outright the applicant’s claim that the LTTE were still in his area in 2008.
(b)This was a significant finding and the basis for rejecting the applicants claim and making adverse findings as to his credibility.
(c)The Tribunal relied on the US Department of State 2008, Country Report on Human rights Practices for 2007 – Sir (sic “Sri”) Lanka (“the US Report”).
(d)The Tribunal misconstrued the region specific evidence in the US report which in fact supported the applicants’ contentions with respect to the continued presence of the LTTE in eastern Sri Lanka, as well as other relevant information.
(e)The Tribunal rejected a specific claim of the Applicant’s as implausible on the basis that the population of his village was only 800. The population of Nintavur was in fact over 26,000.
(f)The Tribunal’s finding as to the population of Nintavur was significant, was used to reject the Applicant’s claim and was erroneous.
(g)The Tribunal failed to take into account region specific evidence contained in UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated April 2009, relied on, and referred to, by the Applicant.

(5) The Tribunal failed to make findings on clearly established facts and this failure amounts to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

The essence of the applicant’s claims is that he had been imputed with a political opinion as the Sri Lankan authorities believe that he sold items to the LTTE, which he was specifically asked not to do. He also fears retribution from the LTTE because his refusal to sell the items to them indicates an inimical stance towards them.
The main reason the Tribunal affirmed the decision of the delegate is that it did not accept much of what the applicant said, for the reasons the Tribunal set out.
For the reasons set out by the Tribunal, it was not satisfied that the applicant is a witness of truth (Court Book 93.7).
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 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) 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 sub-set of reasons why it accepted or rejected individual pieces of evidence.”
The Tribunal was not required to give detailed reasons for finding that it was not satisfied that the applicant is a witness of truth Durairajasingham (Supra) at [67]. However, the Tribunal did give reasons from Court Book 93.7 – 95.1, commencing as follows:
“For the reasons set out herein, the Tribunal is not satisfied that the present applicant is a witness of truth. These reasons relate to the plausibility of the circumstances described within the context of the time; the lack of fit between the modus operandi of both the LTTE and the Sri Lankan authorities and the applicant’s evidence; the addition of claims only at the hearing stage and the inconsistencies in the applicant’s evidence.”
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.”
As the finding as to credibility is a finding of fact is it not amenable to review.
Having rejected most of what the applicant claimed the Tribunal found as matters of fact that:
·there is not a real chance that the applicant would face persecution for reason of his real or imputed political opinion now or in the reasonably foreseeable future, should he return to Sri Lanka (Court Book 95.3)
·no evidence was provided to show that he being a Tamil speaking Muslim exacerbated his vulnerability (Court Book 95.4)
“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 MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).”
·the applicant’s fear of persecution for any Convention reason is not well-founded (Court Book 95.5)
The applicant alleges that the Tribunal’s decision is so unreasonable that no reasonable decision-maker could have made 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].
“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”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
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 does not find the decision to be so unreasonable that no reasonable person could have made it. The Court finds no abuse of power.
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 above findings of fact are not amenable to review.

The grounds in the application

1(a) “The decision is affected by an error of law.” An error has not been shown – this ground is dismissed.

1(b) “The decision is so unreasonable that no reasonable decision maker could have made it.” This ground is dismissed for the reasons expressed above.
1(c) “The decision is based on a finding for which there is no evidence or other material.” The decision is based on a finding that the Tribunal was not satisfied that the applicant is a witness of truth. The Tribunal set out it’s reasons for making that finding, and the evidence in support of those reasons. This claim is dismissed.
1(d) “The decision takes into account irrelevant considerations.” This has not been established. This ground is dismissed.
1(e) “The decision fails to take into account relevant considerations.” This has not been established. This ground is dismissed.
1(f) “The decision is an improper exercise of power.” This has not been established. This ground is dismissed.
1(g) “The decision was not made in good faith and was not a bona fide attempt to exercise power.” This claim alleges bias.
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established. This ground is dismissed.
1(h) “The decision was otherwise contrary to law.” This has not been established. This ground is dismissed.

The grounds in the amended application

(4) “The Tribunal did not have regard to relevant material and took into account irrelevant material leading to erroneous findings of fact and errors of reasoning in coming to its decision which constitutes a jurisdictional error.”
“Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.” NAHI (Supra) at [10]
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J.
4(a) The applicant complains that the “Tribunal rejected outright the applicant’s claim that the LTTE were still in the area in 2008.”
The Tribunal set out its reasons for reaching that finding in reliance on country information from the US Department of State, from Gardner,

S 2007 and from the Reuters report, 11 July (Court Book 93.8 and 94.1).
It is well established that “both the choice and the assessment of the weight of” country information is a matter for the RRT.
“The Court cannot substantiate its own view of the material, even if it had a different view from that reached by the Tribunal.”
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]:
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
“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.” NAHI Supra at [11]
This claim is for a review of the merits. The claim is dismissed.
4(b) The applicant claims that the finding in ground 4(a) was “significant and the basis for making adverse findings against the applicant.” The claim raises no ground to impugn the decision of the Tribunal and is dismissed.
4(c) The applicant complains about the Tribunal relying on country information from the US Department of State. The Tribunal relied on that report, on Gardner and on Reuters (Court Book 94.1). As stated above, “both the choice and the assessment of the weight of country information is a matter for the RRT” NAHI (Supra) at [13]. This ground is dismissed.
4(d) The applicant claims that the Tribunal misconstrued the country information “which in fact supported the applicant’s contentions with respect to the continued presence of the LTTE in eastern Sri Lanka, as well as other relevant information.” The applicant is thereby seeking a review of the merits that are not amenable to review. This ground is dismissed.
4(e) The applicant complains that the Tribunal “rejected a claim of the applicants as implausible on the basis that the population of his village was only 800. The population of Nintavur was in fact over 26,000.” The applicant gave evidence that Nintavur is a town of approximately 800 people (Court Book 91.10). It is not a sustainable ground for review that the Tribunal relied on evidence given by the applicant. This ground is dismissed.
4(f) The applicant complains that the Tribunal’s finding as to the population of Nintavur was erroneous. Again, the Tribunal relied on evidence given by the applicant.
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.”
This ground is dismissed.
4(g) The applicant complains that “the Tribunal did not take into account region specific evidence in the UNHCR…Guidelines…”
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [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.”
The Tribunal chose to rely on the country information from the US Department of State and on Gardner and Reuters (Court Book 94.1). It is for the Tribunal to decide which country information it relies on. NAHI Supra at [11] and [13]. This ground is dismissed.
The applicant claims that “the Tribunal failed to make findings of clearly established facts….that amounts to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.” Findings of fact are a matter for the Tribunal. NAHI Supra. The Tribunal made findings of fact based on the material before it.
“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 MIEA (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.”
Section 422B states that Division 4 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. A breach of Division 4 has not been shown.
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 Court finds no error of law. There was no constructive failure to exercise jurisdiction. This ground is dismissed.
The applicant filed written Facts and Contentions.
The applicant alleges in para.28 that the Tribunal misconstrued the country information in the US Department of State report, as that information supported his contention with respect to the continued presence of the LTTE in eastern Sri Lanka. The applicant is thereby seeking a review of the merits that is not available.
The Court does not find the Tribunal’s findings at Court Book 93.8 to be so unreasonable that no reasonable person could have come to them. There was evidence to support its findings (post). This claim is dismissed.
Ms Taaffe appeared for the applicant. She requested the Court to delete para.29 of the applicant’s Facts and Contentions. She submits that the Tribunal erred in finding that the LTTE was not in the East since July 2007 (Court Book 94.5) and that as the finding was not supported by evidence it could constitute a jurisdictional error.
The finding of the Tribunal was supported by evidence. The US Department of State report was before the Tribunal

(Court Book 93.10) and is attached to the First Respondent’s Outline of Submissions. The Court refers to that report at page 1 para.1.
“In August government security forces expelled LTTE troops from the East.”
The report then considered the northern districts from the end of page 1 para.1. Paragraph 2 appears to be dealing with the North. Paragraph 3 concludes with incidents in the South. The last paragraph on page 2 deals with the rise or para-military forces to fight the LTTE in the East. Whether or not the material on page 1 dealt with the South or the East is a matter for the Tribunal. NAHI supra [10]. On page 10 of the US report there is a statement in para.4 “Before the government drove the LTTE from the East in August, there were reports that the LTTE expropriated food, fuel and other items.”
“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.” NAHI Supra at [11]
It is well established that “both the choice and the assessment of the weight of” country information is a matter for the RRT.
“The Court cannot substantiate its own view of the material, even if it had a different view from that reached by the Tribunal.”
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]:
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
The Tribunal relied also on the Reuters report dated July 11, 2007 (attached to the First Respondent’s Outline of Submissions) , which commences with the statement “Sri Lankan troops drove Tamil Tiger fighters from their last stronghold in the islands east on Wednesday, the military said, but the rebels vowed to carry on with a guerrilla style war.” Ms Taaffe for the applicant concedes that it is possible to conclude from that report that there was evidence that the LTTE were not in the area at the time. (Transcript page 10 line 27)
Ms Taaffe referred to the decision in Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567 at [12] that:
“A finding which is a critical step in the Tribunal’s ultimate conclusion which is not supported by any evidence may well constitute jurisdictional error.”
That decision and those referred to in it are distinguishable from the present case. The finding that the LTTE had not been in the area since July 2007 was open to the Tribunal on the evidence. Ms Taaffe concedes as much. (supra and post)
The Tribunal then stated that even if it was to consider that there is no guarantee that all LTTE people had gone from the area by August 2007, it did not accept the applicant’s claims that the police would have requested that he not sell the items to the LTTE (Court Book 94.2). The Tribunal set out its reasons for that finding; first, that the applicant’s claims were implausible because they were inconsistent with the modus operandi of the Sri Lankan authorities, as it was more likely that the authorities would have removed the goods from the applicant’s shop (Court Book 94.2 – 94.5); secondly, the Tribunal found the claims to be implausible because the applicant had not reported being affected in any manner by the presence of the LTTE and their pursuit by the various governments of Sri Lanka since 1990 (Court Book 94.4); Furthermore, the applicant did not report the assault to the police (Court Book 94.5).
The Court accepts the submission by Mr Felman for the first respondent that each of these reasons provides an independent basis for not accepting the applicant's claims and for the adverse credibility finding against the applicant.
The applicant alleges that “there was evidence and material before the Tribunal that squarely supported the applicant’s case with respect to allegations against the LTTE and government forces.”
The Tribunal reviewed the evidence before it and accepted or rejected it as it thought appropriate in the circumstances. Lee (supra). This allegation seeks a review of the merits that is not available.
The Court in any event cannot substitute its findings of fact for those of the Tribunal. “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” per Katz J in Zuway v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 391 at 399.
Mr Felman submitted also that the Tribunal had proper grounds to not accept that the applicant went into hiding, and that the LTTE threatened him through his wife (Court Book 94.6).
First the Tribunal did not accept that the LTTE was in the area

(Court Book 94.6). Secondly, the Tribunal did not accept that the applicant was able to go into hiding in Nintavur because the LTTE was a “robust and decisive” organisation and the population of Nintavur was only 800 (Court Book 94.7). Thirdly, the Tribunal was concerned that the applicant made the additional claim only at the hearing and not in his initial statement (Court Book 94.8). The Court notes that the claim was made in the applicant’s statutory declaration declared on

20 January 2009 (Court Book 46.3).
Mr Felman pointed out that the Tribunal accepted that the applicant’s brother-in-law was missing but that no evidence had been presented to connect that with the applicant’s claimed LTTE issues.

(Court Book 94.8).
As to the applicant’s claim that the Sri Lankan authorities are still looking for the applicant, Mr Felman submits that the Tribunal had grounds to reject that claim being that the applicant only raised at the hearing the claim that the Sri Lankan authorities constantly visited his house, (Court Book 95.2); and that the applicant gave contradictory evidence about the timing and frequency of the visits

(Court Book 95.2).
The Court accepts that submission. The Tribunal had information on which to base its rejection of the claim that the Sri Lankan authorities are looking for the applicant (Court Book 95.3).
The Court notes, that in relation to the report from the US Department of State, the applicant relies on the 2009 report attached to the first respondent’s outline of submissions in an attempt to show that the findings of the Tribunal were in error. Ms Taaffe submits that the report attached to the first respondent’s submissions is the report that the Tribunal says it took into account. The Court asked Ms Taaffe “Isn’t is possible to conclude from that (the Reuter’s) report that there was evidence that the LTTE was not in the area at the time”

(Transcript page 10 line 26). Ms Taaffe replied “Well, I think it is equally available to conclude, your Honour, that…it is equally acceptable that the LTTE was still in the area.” (Transcript page 10 line 30) and at (line 36) “It is certainly open to doubt.”
Mr Felman submits, and the Court accepts, that even if the Tribunal did not have regard to the UN Guidelines or the US Department of State report, which the first respondent denies, such a failure could not amount to jurisdictional error. As submitted by Mr Felman:
In MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, Middleton J said at [13]-[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J.
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gumnmow JJ).”
If the Tribunal made an error of fact when considering the report the Court finds that there were independent bases for the adverse credibility finding and for rejecting the claims of the applicant (post).

Mr Felman submits, and the Court accepts, that there was a basis for the adverse credibility finding and for rejecting the applicant’s claims, independent of the finding that the LTTE had not been in the area since July 2007 (Court Book 94.2).
The independent findings are:
·
that the Tribunal did not accept that the applicant was approached by either the Sri Lankan authorities or by the LTTE

(Court Book 93.9 – 94.4).
·that the Tribunal, even if it was wrong about the LTTE not being in the area, did not accept the applicants claim that the police would have requested him not to sell the items to the LTTE, because that was not the modus operandi of the Sri Lankan authorities, as they would have removed the goods from the applicant’s premises (Court Book 94.3), and
·
for the other reasons expressed by the Tribunal

(Court Book 94.5) that the applicant had had the shop in the same area since 1990 and ad not reported being affected in any manner by the presence of the LTTE since 1990; and the applicant did not report the assault to the police.
The Court accepts that each of those findings provides an independent basis for not accepting the applicant’s claims, and for making the adverse credibility finding against him.
Where there is an independent unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision of Justice North in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellant’s case, like Mobil Oil Canada Lt v Canada-Newfoundland Offshore Petroleum Board [20], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse.”[21]
The adverse credibility finding and the rejection of the claims, would therefore stand even if the Tribunal had regard to the wrong information or misinterpreted the country information in reaching its finding that the LTTE were not in the area at the relevant time. Even if there was an error, no useful result could ensue from remitting the matter to the Tribunal.
[21] Re Refugee Tribunal Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
Ms Taaffe’s contention that the Tribunal’s decision was based on the finding that the LTTE were not in the area at the relevant time (Transcript page 3) is not strictly correct. The Tribunal rejected most of the applicant’s claims and evidence; the finding about the absence of the LTTE was but one factor. The decision results from a rejection of most of the claims and evidence, and the resulting adverse credibility finding.
Mr Felman submits that there was no evidence before the Tribunal that the population of Nintavur was 26,000. The applicant told the Tribunal that the population was 800 (Court Book 91.10). There appears to have been no mention of 26,000 until the hearing before the Court.
The Tribunal, especially as it had the applicant’s evidence about the population, was not obliged to make its own enquiries.
There is no positive obligation to obtain further information on the part of the Tribunal: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 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].
In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:
In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare. At [25]-[26] his Honour said:
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
As the Tribunal had the information from the applicant, it had no duty to enquire as to the other information. There was no duty on the Tribunal to enquire into facts well known to the applicant and within his power to adduce. Singh (Supra).
The Court finds that there was evidence before the Tribunal on which its finding of fact that the LTTE were not in the East at the relevant time could be made. A jurisdictional error has not been established. Even if that assessment is incorrect, and the Court will not be drawn into an assessment of the merits, there were other independent reasons for not finding the applicant to be a credible witness and for rejecting his claims.
As stated by Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510.”
A jurisdictional error has not been established.
Mr Felman submits, and the Court accepts, that the Tribunal did not fail to deal with an integer of the applicant’s claims, and that whether or not the LTTE were in the East at the time, or what the population of Nintavur was, were matters of evidence not integers. If there were errors of fact, and it has not been shown that there were, they do not evidence a failure to deal with an integer. A failure to deal with a piece of evidence does not amount to or jurisdictional error. VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31].
The Court finds that the question of the presence of the LTTE in the area is not an integer of the applicant’s claims.
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.
Even if there was an error, there were independent unimpeachable reasons for the decision, and the Court would deny relief as a matter of discretion.
The application and amended application are dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Erin Firns

Date: 10 December 2009